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Pennsylvania Electric Co. v. Federal Mine Safety and Health Review Commission

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


argued: May 6, 1991.

PENNSYLVANIA ELECTRIC COMPANY, PETITIONER
v.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION AND SECRETARY OF LABOR, RESPONDENT

On Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission

Before: Mansmann, Nygaard and Roney,*fn* Circuit Judges.

Author: Roney

Opinion OF THE COURT

RONEY, Senior Circuit Judge.

This case questions which Government agency has jurisdiction over the safety practices of Pennsylvanian Electric Company (Penelec) in handling and processing coal within its electric generating plant in Homer City, Pennsylvania. The Federal Mine Safety and Health Review Commission asserted jurisdiction under the Mine Safety and Health Act, upholding the issuance of certain safety violation citations issued thereunder. By seeking review of that decision, Penelec asserts that its safety practices should be governed by OSHA, the Occupational Safety and Health Act, and that the Mine Act inspector was without jurisdiction to issue the citations. Following the statute and the conduct of the agencies under the interagency agreement which works out the interplay between the two acts, we uphold the Secretary of Labor's assertion of jurisdiction under the Mine Act and affirm the decision enforcing these citations.

The Mine Act generally involves coal mining operations. See 30 U.S.C. § 801, et seq. OSHA generally involves safety in the generating plant. 24 U.S.C. § 651, et seq. To understand how the operations at Penelec bring these two Acts into convergence, one must track the coal from the mine to the generator boilers. (See the parties stipulated Exhibit B entitled "Homer City Station Coal Flow Diagram" appended hereto).

The "raw coal" used in the Penelec generating facility to produce power is delivered by conveyor belt from two adjacent mines. Coal from the adjacent mines is moved by conveyor to scales where it is weighed and sampled. At this point title passes from the mines to Penn Electric. The coal is then transported by conveyor to a coal processing station ("the station") located on Penelec property.

At the station the coal is broken, crushed, sized, washed, cleaned, dried, and blended in order to make a "useable coal product" for the electric generating facility. At the time the citations were issued, the station was being operated by Iselin Preparation Company, a subsidiary of one of the two mining companies. As the stipulated diagram denotes, MSHA had previously inspected and otherwise exercised jurisdiction over the Penelec processing station since 1977. However, it has never regulated the facilities used to move the processed coal leaving the station and destined for the generating facilities.

The present dispute concerns the head drives of the conveyor belts used to transport coal from the minehead scales to the processing station located at the entrance of Bin #2 on the parties' diagram. On January 7, 1988, an inspector from MSHA issued citations to Penn Electric for failing to place adequate guards around these head drives, as required under MSHA. 30 C.F.R. § 77.400(c). Penn Electric does not contest that it failed to guard the cited head drives or that MSHA satisfied its burden of proof with regard to the existence of the violations underlying the citations. It argues, however, that the MSHA inspector did not have the authority to issue the violations.

Penelec argues two reasons for setting aside the violation citations. First : MSHA does not have the statutory jurisdiction over coal conveyors within the electric generating station. In making this argument, Penelec relies upon the plain language of the statute, the legislative history and case law under the Mine Act, and analogous case law under the Black Lung Benefits Act. Second : MSHA has not sufficiently exercised authority over Penelec's coal handling operations to deprive OSHA of its statutory jurisdiction over the coal conveyor head drives. The law defeats Penelec's argument on the first issue, and the substantial evidence on the record supports the contrary decision of the administrative law judge on the second issue.

Statutory Jurisdiction of MSHA

The Mining Act provides that "each coal or other mine . . . shall be subject to" MSHA jurisdiction. 30 U.S.C. § 803(4). Section 803 3(h) of MSHA defines a "coal or other mine" and "coal mine" to include the "work of preparing coal." Specifically, section 3(h) states:

(1) "coal or other mine" means (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 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. (emphasis added)

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

Penelec admits that the cited conveyor head drives are engaged in the "work of preparing coal," however, it disputes whether the actual preparation performed is the kind "usually done by the operator of a coal mine." Penelec is not an operator of a coal mine in the classic sense of those words. See Donovan v. Carolina Stalite Co., 236 App. D.C. 264, 734 F.2d 1547 (D.C. Cir. 1984).

With regard to its jurisdiction, however, MSHA specifically sets forth a functional analysis of the nature of the work being performed, not one tied solely to the identity of the employer. The question to be answered is whether the activities at issue constitute "preparation of coal," not whether the entity engaged in the preparation is also in the coal mining business. Hanna v. Director, OWCP, 860 F.2d 88, 92 (3d Cir. 1988). The legislative history of the 1977 Mine Act indicates that the definition of a "mine" should receive the broadest possible interpretation and that doubts should be resolved in favor of coverage. S.Rep. No. 181, 95th Cong., lst Sess. 1, 14, reprinted in 1977 U.S. Code Cong. & Admin. News, pp. 3401, 3414.

Penelec argues that it is not subject to MSHA's jurisdiction because it uses a unique preparation process to clean the coal which is ultimately consumed. This argument has no merit because MSHA specifically addresses custom preparation facilities. See supra § 3(b)(1) and Dowd v. Director, OWCP, 846 F.2d 193, 194 (3d Cir. 1988). MSHA has jurisdiction when the facility is one that prepares coal to meet market specifications or to make it fit for a particular industrial use. Oliver W. Elam Jr., Co., 4 F.M.S.H.R.C. 5 (Jan. 7, 1982).

The fact that the coal had been sold and title passed to Penelec before it was processed is not determinative. See Donovan v. Carolina Stalite Co., 734 F.2d at 1547 (independent gravel processing facility which purchased slate from adjacent quarry constituted "mine" under Mine Act). Indeed, this Court has explicitly rejected the view that persons who handle coal after its sale by the extractor cannot be engaged in the work of preparing the coal. Stroh v. Director, OWCP, 810 F.2d 61, 64 (3d Cir. 1987). The Mine Act which preceded this one contained an exception related to processing work performed by the ultimate consumer of coal, the current Act does not. In any event, Penelec could not seriously contend that if it controlled the adjacent mines it would not be subject to MSHA because of its status as an ultimate consumer. Emphasis on legal title to the property, rather than on the functions carried out in the relevant areas, artificially restricts the scope of the Act and undercuts its purposes. See Carolina Stalite, 734 F.2d at 1551. In Carolina Stalite the court stated:

It is clear that every company whose business brings it into contact with minerals is not to be classified as a mine within the meaning of section 3(h). The jurisdictional line drawn by the statute rests upon the distinction, which is somewhat elusive, to say the least, between milling and preparation, on the one hand, and manufacturing, on the other. Classification as the former carries with it Mine Act coverage; classification as the latter results in Occupational safety and Health Act regulation.

Id. Here, the cited activity was clearly antecedent to and separate from the process of producing electrical power and instead consisted of coal preparation.

Under the functional analysis, the activities conducted at Penelec's processing station specifically fall within MSHA jurisdiction. At the station the coal is broken, crushed, sized, washed, cleaned, dried, and blended in order to make a "useable coal product" for the electric generating facility. These are all activities within the MSHA definition of preparing coal contained in section 3(i).

In affirming MSHA jurisdiction, the Mining Commission deemed it of significance that the cited conveyors were located between two areas of MSHA jurisdiction. See the above reference coal flow diagram. Specifically, MSHA exercised jurisdiction over the conditions in the adjacent mines as well as conditions inside the station. Penelec does not dispute that MSHA properly exercised jurisdiction within the station. In fact Penelec produced a Penelec inter-office memorandum which memorialized the August 25, 1977 meeting between officials of Penelec, Iselin, and the Mining Enforcement and Safety Administration ("MESA"), predecessor of MSHA. At that meeting it was clearly established that MESA would have jurisdiction over the coal cleaning plant.

Courts must uphold an agency's reasonable construction of a statute it is entrusted to administer. Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984); K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291-92, 108 S. Ct. 1811, 100 L. Ed. 2d 313, 6 U.S.P.Q.2D (BNA) 1897 (1988); Puerto Rico Maritime Shipping Auth. v. Valley Freight Systems, Inc., 856 F.2d 546, 552 (3d Cir. 1988). In Donovan v. Carolina Stalite, the Court noted that the putative mines at issue were unquestionably subject to regulation under either MSHA or the OSHA, so that the Secretary in effect was not determining the outer limits of his own authority, but merely "adjusting the administrative burdens between his various agencies." Id. at 1553. Additionally, the Secretary of Labor's determinations regarding what constitutes a "mine" under § 3(h) of the Mine Act, 30 U.S.C, § 802(h), although jurisdictional, are entitled to deference. Carolina Stalite, 734 F.2d at 1551-54. Similarly, Penelec is unquestionably subject to regulation by the Secretary under one Act or the other. We defer to the Secretary's reasonable construction of § 3(h) of MSHA by extending the deference which that interpretation deserves, by upholding MSHA jurisdiction.

Exercise of Authority by MSHA over Conveyor Driveheads

Section 4(b)(1) of OSHA states that OSHA has jurisdiction over all working conditions except where another federal agency has exercised authority to promulgate standards or regulations affecting occupational safety. See Columbia Gas of Pa., Inc. v. Marshall, 636 F.2d 913, 915 (3d Cir. 1980). Penelec argues that the Secretary of Labor failed to sufficiently exercise under MSHA to displace OSHA jurisdiction.

On first review, the Mining Commission remanded the present case to the Administrative Law Judge to determine whether the Secretary had properly exercised her statutory authority to regulate the cited working conditions. After a hearing the Administrative Law Judge found that the Secretary had previously applied MSHA standards to the cited head drives and that Penelec was aware of those citations and inspections. OSHA has never regulated the conveyor belts at this facility and although OSHA may regulate electrical utilities as such, it does not generally regulate coal processing activities performed by electrical utilities.

Penelec argues that MSHA has not promulgated regulations or standards directed to the electric utility industry while OSHA has a long-standing practice of regulating the coal handling operations of electric utilities. See Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 915-16 (3d Cir. 1980) (agency's declaration of authority insufficient to displace OSHA). The U.S. Supreme Court has recently held, however, that the Secretary's litigating position before the Commission is an exercise of jurisdiction entitled to deference. Martin v. OSHRC, 111 S. Ct. 1171, 113 L. Ed. 2d 117 (1991).

Moreover, when embodied in a citation, the Secretary's interpretation assumes a form expressly provided for by Congress. (citations omitted) Under these circumstances, the Secretary's litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a workplace health and safety standard.

Id. at 132.

The record contains uncontradicted evidence that MSHA had consistently inspected the head drives and related areas, and issued citations relating to them, to the processing station's previous operator. At the hearing upon remand, the inspector who issued the disputed citations testified that he had regularly inspected the conveyor head drives since 1982. The record also contains evidence that Penelec's management was aware of the citations because Penelec employees abated similar violations by, for example, cleaning up the area and installing guards. On at least one occasion Penelec's supervisor for coal handling was informed by the station's operation of such a citation and the need for abatement measures.

In response to a Penelec inquiry, on April 12, 1988, the MSHA district manager informed Penelec by letter that MSHA considered its jurisdiction as extending from the point of receipt of the coal "until the finished coal is placed onto belts and transported to the claim coal storage areas." A copy of this letter was sent to the OSHA area director.

We conclude that the Secretary of Labor sufficiently exercised her authority by issuing citations under the existing MSHA regulations which, under the definitions supplied by the Act, apply to Penelec's coal processing station. This exercise of authority under MSHA sufficiently displaced OSHA jurisdiction.

Due Process and Fundamental Fairness

Penelec argues that MSHA's issuance of the citations in question violates the fundamental principles of due process under the Fifth Amendment of the United States Constitution. See Diamond Roofing v. OSHRC, 528 F.2d 645 (5th Cir. 1976) (regulations of workplace must give employer fair warning of prohibited conditions and practices), and Phelps Dodge v. FMSHRC, 681 F.2d 1189 (9th Cir. 1982) (regulations must convey an intention to cover the methods utilized by the employer). Penelec complains that the MSHA regulation, on its face, applies only to mines and that the utility company received notice of MSHA jurisdiction only after the citations were issued. They also assert that OSHA has been the traditional regulator of electrical utilities.

The facts cited above contradict this argument. The Administrative Law Judge concluded that Penelec had notice of MSHA jurisdiction over the cited areas. If jurisdiction over the processing station itself is proper, then any equipment transporting raw coal to such a facility would similarly be covered. In effect, Penelec, argues that the statutory definitions of "mine" and "work of preparing the coal" are unclear. The Supreme Court has held, however, that there is a heavy burden on those who assert a constitutional challenge of statutory vagueness against an economic regulation. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). Penelec's arguments do not meet this standard.

We affirm the Administrative Law Judge's finding that Penelec had "actual or constructive knowledge" of MSHA's exercise of authority over the disputed areas and, thus, no due process violation occurred.

The Mining Commission properly concluded that the conveyor head drives at the Penelec generating station are subject to jurisdiction under MSHA. We, therefore, uphold the citations and will affirm the Commission's decision.

MANSMANN, Circuit Judge, dissenting.

Without specifically recognizing that it does so, the majority opinion in this matter works a major change in the reach of regulatory jurisdiction under the Mine Safety and Health Act and in settled interpretation of that Act. Because I do not believe that these departures are compelled or counseled by the facts of this case and because the course charted by the majority has potentially serious consequences for virtually all commercial coal consumers and their employees, I dissent.

I.

In order to place my differences with the majority in context it is necessary to revisit the facts of this case. As the majority notes, this matter has its origins in events transpiring at the Homer City Generating Station located in Indiana County, Pennsylvania. The station, which is jointly owned by Pennsylvania Electric Co. (Penelec) and New York State Electric & Gas Corporation, is operated by Penelec to produce electric energy through coal combustion. The station began operation in 1969 with two power-generating units. In 1977, a third unit was added. At that time, more stringent sulfur dioxide emission requirements were imposed upon the station owners by the United States Environmental Protection Agency. To bring the new third unit into compliance with these standards, a coal cleaning facility designed to reduce the level of sulfur dioxide in certain incoming coal was constructed on the station premises.*fn1

Coal burned in each of the generating units originates from three sources: the Helen Mining Company, the Helvetia Mining Company -- both of which are adjacent to the Homer City station -- and through a truck dump facility which acquires coal from mines throughout western and central Pennsylvania. Raw coal from the Helen and Helvetia Mines is moved from the ground to raw coal silos. From there, the coal is transported through preparation equipment designed to clean and break the coal and is then placed into clean coal silos. Coal from these mines, which is purchased by Penelec, is then delivered, via conveyor belt, to scales where it is weighed and sampled. Title passes to Penelec at this point. Conveyors 3 and 4 then carry coal to Bin 1 where further sampling takes place. Conveyors 5A and 5B (and their head drives) next move the coal from Bin 1 to Bin 2. From Bin 2, coal, depending upon its sulfur content, may be sent directly to station boilers for consumption or may be diverted into the coal cleaning plant.

Coal delivered to the Homer City truck dump has also undergone processing prior to delivery. At the truck dump facility the coal is weighed and sampled and title passes to Penelec. Some of this coal crosses conveyors 5A and 5B in order to be burned directly or, depending upon its sulfur content, may be routed instead to the cleaning plant.

Prior to 1977, the entire Homer City operation fell within the jurisdiction, for safety purposes, of the Occupational Safety and Health Administration (OSHA). This exclusive OSHA regulation ended with construction of the cleaning plant. At that time, Penelec, OSHA, and the Mine Enforcement and Safety Administration ("MESA," the predecessor to MSHA) entered into an agreement whereby MESA was authorized to assume jurisdiction over the coal cleaning plant. Under the terms of this agreement, MESA, and later MSHA, did not inspect station equipment outside of the cleaning facility; these areas remained within OSHA jurisdiction. This jurisdictional arrangement apparently operated smoothly until January, 1988 when an MSHA field inspector issued citations to Penelec after noting that the head drives*fn2 on conveyors 5A and 5B, which carry coal directly to station boilers or to the cleaning plant, lacked guards in violation of 30 C.F.R. § 77.400(c) (1990). On June 30, 1988, the Secretary of Labor filed a Petition for Assessment of Civil Penalties against Penelec.

The issuance of this January, 1988, citation represented MSHA's first attempt to assert jurisdiction over any portion of the Homer City operation outside the confines of the cleaning plant.*fn3 MSHA's assertion of jurisdiction was based upon its conclusion that the head drives of Conveyors 5A and 5B are used in "the work of preparing the coal" as defined in 30 U.S.C. § 802(i) (1986). Because they are used in the work of preparing the coal, MSHA argued, the conveyor head drives fall within the definition of "coal or other mine" as set forth in 30 U.S.C. § 803(h)(1) (1986). As the Mining Act provides that "each coal or other mine . . . shall be subject to [MSHA jurisdiction]," 30 U.S.C. § 803, it would arguably follow that MSHA was within its authority in issuing citations relating to the 5A and 5B conveyor head drives. Contesting these citations, Penelec argued before the Department of Labor administrative law judge that the conveyor head drives did not fall within the definition of a "coal mine" under section 802(h)(1) of the Mine Act.*fn4

Following argument, the administrative law judge granted MSHA's motion for summary judgment, ruling that MSHA had jurisdiction to issue citations relating to the 5A and 5B conveyor head drives as they were used in the "work of preparing the coal" within the meaning of 30 U.S.C. § 802(i).

Penelec filed a Petition for Discretionary Review which was granted. On October 10, 1989, the Federal Mine Safety and Health Review Commission issued an opinion remanding the matter to the administrative law judge in order to clarify apparently conflicting positions taken by the Secretary of Labor with respect to whether she intended to regulate facilities such as Penelec pursuant to MSHA or OSHA.*fn5 In a three to one decision, the Commission wrote:

We conclude that MSHA possesses statutory authorization to regulate working conditions associated with Penelec's preparation of coal, and that the Secretary of Labor could decide to make mine safety standards applicable to the disputed area. Whether she has done so, however, is another matter and one which we are unable to determine with any degree of assurance from the murky record presently before us.

Secretary of Labor v. Pennsylvania Electric Co., 11 F.M.S.H.R.C. 1885 (Oct. 10, 1988).

On remand, the Secretary of Labor objected to the scope of the remand order and maintained that "Commission review of her internal decision-making processes and intrusion by the Commission into her reasons and motives for such decisions [were] impermissible and privileged." Secretary of Labor v. Pennsylvania Electric Co., 12 F.M.S.H.R.C. 123, 124 (Jan. 23, 1990). The administrative law judge found it unnecessary to reach the issues raised by the Secretary:

Following additional hearings on remand I find that although the Secretary never clearly established, prior to the issuance of the citations at bar, that MSHA would assert exclusive inspection authority over the subject 5A and 5B head drives, I do not find in these civil proceedings any legally cognizable secretarial impropriety in exercising her authority to regulate the area of the cited 5A and 5B head drives identified or sanctioned within the framework of the Act.

Id. (footnote omitted).

On review of the administrative law judge's decision following remand, the Commission members divided evenly over whether the decision of the administrative law judge should be affirmed. Two Commissioners voted to affirm. One voted to reverse on the ground that Mine Act jurisdiction was not broad enough to encompass the conveyor head drives at the Homer City station, and the final Commissioner voted to reverse on the ground that the Secretary, while authorized to regulate via MSHA, had not exercised her statutory authority to regulate under that Act. The Commission concluded that the effect of the split was to affirm the decision of the administrative law judge that the citations issued through MSHA were appropriate and enforceable. This appeal followed.

As the majority points out, disposition of this appeal requires that we address two issues: 1) does MSHA possess the statutory authority to regulate the 5A and 5B conveyor head drives at the Homer City Station; and 2) assuming such statutory authority, had the Secretary exercised authority under MSHA prior to the issuance of these citations. I differ with the majority with respect to both of these issues and will address each in turn.

II.

Whether the Secretary possesses the requisite statutory authority under the Mine Safety and Health Administration to regulate the 5A and 5B conveyor head drives turns upon whether these head drives are involved in "the work of preparing the coal" within the meaning of section 802(e) of the Mine Act. Our review of this question of statutory interpretation is plenary. Government Employees Insurance Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).

The parties join issue over whether the head drives of conveyors 5A and 5B are used in "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine." 30 U.S.C. § 802(i). In order to be involved in "the work of preparing the coal," it is undisputed that the facility or equipment at issue must meet two criteria: 1) the equipment must be used in connection with one or more of the processes enumerated (i.e. breaking, crushing, etc.); and 2) the preparation at issue must be of a type usually performed by a coal mine operator. See, e.g., Secretary of Labor v. Pennsylvania Electric Company, 11 F.M.S.H.R.C. 1875, 1880 (Oct. 10, 1989) (performance of listed work activities and nature of the operation performing those activities are relevant in determining whether coal preparation is taking place); and Secretary of Labor v. Oliver M. Elam, Jr., Co., 4 F.M.S.H.R.C. 5, 7 (Jan. 7, 1982) (inherent in the determination of whether an operation properly can be classified as "mining" is the nature of the operation performing such activities).

The focus of the inquiry in this matter is upon the second of the section 801(i) criteria: Is the activity in which the conveyer heads are used part of the "work of preparing [the] coal as is usually done by the operator of the coal mine?"

It is undisputed that Penelec is not an operator of a coal mine in the sense in which that term is commonly understood. The majority, however, concludes that the Penelec treatment facility nonetheless falls within the statutory definition of a coal mine because, under section 802(h)(2), the reference in section 802(i) to the work of preparing the coal "includes custom coal preparation facilities." According to the majority, the Penelec cleaning facility and all of its operations that precede the coal's entry into this facility constitute custom coal preparation -- "MSHA has jurisdiction when the facility is one that prepares coal to meet market specifications or to make it fit for a particular industrial use." Majority Typescript at 6 (citation omitted). Given that coal passes through the Penelec cleaning plant in order "to make a 'useable coal product' for the generating facility," id. , the statutory definition of a coal mine has, in the majority's view, been satisfied and MSHA jurisdiction may be asserted.

I have grave concerns with this analysis. While it is superficially appealing, in reality it represents a dramatic departure from settled Mine Act interpretation and extends the jurisdictional reach of MSHA far beyond any outer limit ever established. Under the majority's custom coal preparation analysis, every end-user of coal -- including electric utilities, steel mills, aluminum mills, and chemical plants which have never been subject to regulation under MSHA, -- that engages in 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) definition of a coal mine since each of those activities is undertaken to make the coal fit for a particular industrial use. Taken to its logical end, the majority's argument would require that at least that portion of any business operation in which coal is stored in bins and then broken for ease in firing a furnace could be appropriately characterized as a coal preparation facility in that storing and breaking are part of the process that "makes [coal] fit for a particular industrial use." Majority typescript at 6.

While our precedent recognizes that the definition of a mine for purposes of Mine Act coverage is to be given a broad interpretation, Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 592 (3d Cir. 1979), that broad interpretation, until now, has had limits. See MSHA v. Oliver M. Elam, Jr., 4 F.M.H.S.R.C. at 7 ("simply because [an operator] in some manner handles coal does not mean that it is a 'mine' subject to the Act"); Donovan v. Carolina Stalite Co., 236 App. D.C. 264, 734 F.2d 1547, 1551 (D.C. Cir. 1984), also makes clear that MSHA jurisdiction has defined boundaries.

It is clear that every company whose business brings it into contact with minerals is not to be classified as a mine within the meaning of section 3(h). The jurisdictional line drawn by the statute rests upon the distinction, which is somewhat elusive, to say the least, between milling and preparation, on the one hand, and manufacturing, on the other. Classification as the former carries with it Mine Act coverage; classification as the latter results in Occupational Safety and Health Act regulation.

Though the legislative history of the Mine Act states that the definition of a mine is to be given the broadest possible interpretation, S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in 1977 U.S. Code Cong. & Admin. News 3401, 3414, "it cannot be forgotten that the Act was intended to establish a 'single mine safety and health law, applicable to all mining activity.' S. Rep. No. 461, 95th Cong., 1st Sess. 37 (1977)' . . . 'There is no indication of any intention to follow the coal wherever it might go and certainly no indication that Congress intended to regulate other industries such as electric utilities or steel mills. . . .'" Secretary of Labor v. Pennsylvania Electric Co., 11 F.M.S.H.R.C. at 1889-1890 (Doyle, Com., dissenting). The fact that the Mine Act has consistently been interpreted as less than all-encompassing and that Congress has, for years, acquiesced in this interpretation indicate that "MSHA [and the majority have] embarked here upon a course at odds with consistent prior policy. . . ." Id. at 1885.

In order to illustrate the nature of the change effected by the majority, it is helpful to examine the jurisdictional line drawing that has been established in caselaw interpreting the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, a subchapter of the Mine Act. The Benefits Act was intended to provide disability payments to miners unable to work as a result of black lung disease contracted in connection with employment in a "coal mine." The identical section 3(h) definition of "coal mine" at issue in this case applies to determinations to be made under the Benefits Act. Consolidated Coal Co. v. McGrath, 866 F.2d 1004, 1005 (8th Cir. 1989).

The caselaw interpreting section 802(i) in the context of the Benefits Act uniformly holds that the phrase "preparation of the coal" has no application to processing not undertaken for a commercial purpose. In Wisor v. Director, OWCP, 748 F.2d 176, 179 (3d Cir. 1980), we held, in a Benefits Act case, that the section 802(h)(1) definition of a coal mine "includes a commercial purpose requirement. If an employee delivers coal to the employer which the employer purchases and processes for its own consumption, that employee would not be engaged in the 'work of preparing' the coal as defined in the Act." This is consistent with our holdings in Stroh v. Director, OWCP, 810 F.2d 61, 64 (3d Cir. 1987), that if an employee delivers coal to the employer which processes the coal for its own consumption, that employee is not engaged in the "work of preparing the coal" within the meaning of the Act, and in Dowd v. Director, OWCP, 846 F.2d 193, 195 (3d Cir. 1988), where we found that an employee working in a coal preparation facility was a "miner" within the terms of the statute but stressed "that Dowd's employer does not handle processed coal, does not consume the coal, and does not utilize the coal to produce a product or products other than coal" (footnotes omitted).*fn6

For similar statements construing section 802(h)(1) of the Mine Act, see Director, OWCP v. Consolidation Coal Co., 923 F.2d 38, 41-41 (4th Cir. 1991) (coal considered to be beyond the preparation stage once it has been processed and prepared for market; crushing of coal after it has entered the stream of commerce does not fall within the coverage of the statute); Amax Coal Co. v. Fagg, 860 F.2d 916, 918-19 (7th Cir. 1989) (work of preparing the coal "occurs precedent to retail distribution and consumption); Director, OWCP v. Ziegler Coal Co., 853 F.2d 529, 536 (7th Cir. 1988) (preparation of coal involves what is done to the coal after it is extracted from its natural deposit and prior to its retail distribution and consumption); Eplion v. Director, OWCP, 794 F.2d 935, 937 (4th Cir. 1986) (employee transporting previously processed coal to barges for delivery to customers not involved in "the work of preparing the coal" even though the customer washed the coal); Foreman v. Director, OWCP, 794 F.2d 569, 571 (11th Cir. 1986) (although further processing such as wetting coal dust was performed by power plant to satisfy its own requirements, this work did not fall within the parameters of the Act); Johnson v. Weinberger, 389 F. Supp. 1296, 1298 (S.D.W.Va. 1974) (employee who shoveled coal into a crusher, crushed coal and sent it over conveyor into chemical mill was not "miner"; "preparation of coal" relates to preparation prior to shipment and use of coal in commercial facilities); Young v. Weinberger, 389 F. Supp. 979, 980 (S.D.W.Va. 1975) ("work of preparing the coal" did not extend to worker at metal processing plant where coal was used in operation of the plant); Ferris v. Director, OWCP, 3 Black Lung Reptr. 1-320 (1981, BRB) (where power plan purchased partially processed coal and pulverized it for its own use, employer was a consumer of coal rather than a coal producer and was not a "coal mine").

Despite the fact that these Benefits Act cases have developed a practical approach to what constitutes "the work of preparing the coal," the majority does not so much as mention them. Not having found cases to support the proposition that the term "coal mine" is to be interpreted differently in determining Mine Act coverage than in determining Benefits Act coverage, I, like Commissioner Doyle,

view the test developed [in the Black Lung context] as quite relevant in determining when an operation falls within the definition of a "coal mine." In fact, . . . we, in deciding a black lung case, made specific reference to [our] earlier holding in [ Stoudts' Ferry ], a Mine Act case, as authority for [our] construction of the terms "coal mine" and the "work of preparing the coal." Dowd v. Director, OWCP, 846 F.2d 193, 195 (3d Cir. 1988).

Secretary of Labor v. Pennsylvania Electric Co., 11 F.S.H.R.C. at 1184 (emphasis in original).*fn7 The Benefits Act approach clearly runs contrary to the broad jurisdictional position taken by the majority which abandons any version of the ultimate consumer or stream of commerce test and does not offer a workable, predictable means for determining, in future cases, where preparation ends and the process of manufacturing begins.*fn8

I do not believe that this abandonment is mandated by the facts of this case or by the language of the statute. Penelec purchases coal which has already undergone processing and is "in condition for delivery to distributors and consumers." Roberts v. Weinberger, 527 F.2d 600, 602 (4th Cir. 1975). Merely because some of the coal traveling over the 5A and 5B conveyers is treated in a Penelec facility to bring the coal into compliance with a specific environmental standard does not, in my view, render that processing work that is "usually performed by the operator of the coal mine."*fn9 As I have noted, to so hold would require that all consumers of coal performing any processing whatever be brought within Mine Act jurisdiction and would have potentially serious consequences, not addressed by the majority, for the employees of these consumers. The majority fails to make clear that, at the Penelec facility, MSHA proposes to regulate only those conveyors leading to the coal cleaning facilities. Identical conveyors on the other side of the cleaning facility would continue to be subject to regulation by OSHA. As the amicus brief of Edison Electric Institute, an association of investor-owned electric companies generating 78 percent of all the electricity in this country, points out:

Nothing in the record suggests that the hazards inherent in operating and maintaining [the conveyor system which carries coal from the cleaning plant] are any different than those attendant to the conveyor feeding coal to the cleaning plant. But the approach which this Court is asked to affirm, when coupled with the existing inconsistencies among important OSHA and MSHA standards, would dictate significant differences in equipment design, as well as in employee safety work rules and training. As . . . the Fourth Circuit recognized in Old Dominion Power Co. v. Donovan, 772 F.2d 92, 99 (4th Cir. 1985), "requiring electric utility employees suddenly to adhere to conflicting standards depending on their job location can only lead to danger, especially where work around high voltage is involved."*fn10

Nothing in the facts of this case or in the majority opinion convinces me that the majority's departure from prior interpretation of the Mine Act is supportable under the caselaw or under the terms of the Act itself. Accordingly, I would hold that the conveyor heads at issue do not fall within the coverage of the Mine Act.*fn11

III.

Having set forth the grounds upon which I base my difference with the majority with respect to the jurisdictional reach of the Mine Act, I turn next to the question of whether, assuming arguendo that the majority is correct that the conveyor heads at issue fall within the terms of the Mine Act, the Secretary of Labor has exercised regulatory authority under MSHA sufficient to preempt OSHA jurisdiction.

Section 4(b)(1) of the Occupational Safety and Health Act, 29 U.S.C. § 653(b)(1) (1985) provides that:

Nothing in this Chapter shall apply to working conditions of employees with respect to which other federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

As we stated in Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 915-16 (3d Cir. 1980),

Section 4(b)(1) preemption requires a two-part showing; first, that a coordinate federal agency has "exercised" authority by promulgating regulations in the area and second, that these concurrent regulations cover the specific "working conditions" purportedly within OSHA's jurisdiction.

The majority rejects Penelec's assertion that the Secretary of Labor has failed to exercise authority under MSHA sufficient to preempt OSHA regulations of the 5A and 5B conveyor head drives. In a brief analysis of what I believe to be a complex issue, the majority concludes, based on the Supreme Court's decision in Martin v. OSHRC, 113 L. Ed. 2d 117, U.S. , 59 U.S.L.W. 4197, 111 S. Ct. 1171 (1991), that "the Secretary's litigating position before the Commission is an exercise of jurisdiction entitled to deference." Majority Typescript at 10. Because, the argument runs, the Secretary based the citation issued to Penelec upon an MSHA regulation and has asserted in these proceedings that MSHA has jurisdiction over the 5A and 5B conveyor heads, we are bound to defer to that determination. In support of its conclusion, the majority relies upon the following statement in Martin :

When embodied in a citation, the Secretary's interpretation assumes a form expressly provided for by Congress. Under these circumstances, the Secretary's litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a workplace health and safety standard.

59 U.S.L.W. at 4201 (citations omitted).

First, I do not read Martin v. OSHRC to support the proposition that the Secretary's litigating position in this matter, without more, constitutes an exercise of statutory authority sufficient to preempt OSHA jurisdiction under section 4(b)(1) of the OSH Act. Martin does not concern OSH Act preemption but addresses instead the question, "To whom should a reviewing court defer when the Secretary of Labor and OSHRC furnish reasonable but conflicting interpretations of an ambiguous regulation promulgated by the Secretary under the OSH Act?" Id. at 4198. Martin 's holding is narrow, dealing "only with the division of powers between the Secretary and the Commission under the OSH Act." Id. at 4201. No issue of division of powers between the Secretary and the Commission is raised in this case. In fact, no regulation whatever, ambiguous or otherwise, is implicated in the section 401(b)(1) determination that we are required to make in this matter.

The statement in Martin regarding the deference due the Secretary's litigating position has, it seems to me, been taken out of context and read to apply where it has no application. I believe that the Court, in the statement referenced, intended to establish that the Secretary's view of ambiguous regulatory provisions may be clarified during the course of administrative adjudication rather than through some more formal mechanism. In other words, in the case of a conflict in interpretation of an ambiguous regulation arising between OSHA and the Secretary, the Secretary's litigating position should be considered a specific enough statement of its view of the regulation to constitute an interpretation of that regulation to be entitled to deference. The situation presented here is quite distinct from that in Martin and I do not believe that Martin has any relevance to the determination of whether the Secretary of Labor's issuance of the citation to Penelec pursuant to an assertion of MSHA jurisdiction was sufficient, on the facts of this case, to preempt OSHA's regulatory authority.

Martin notwithstanding, I believe that proper resolution of this matter requires that we examine the Secretary's approach to regulation of Penelec and other power-producing facilities. In my view, the regulatory history fails to demonstrate the Secretary's consistent and unequivocal exercise of authority under MSHA.

In Columbia Gas, we stated unequivocally that, in order for OSHA to be deprived of jurisdiction, "mere declaration of authority over the area is not enough." Id. at 915-16 n.7. The focus of the Columbia Gas inquiry is on 30 C.F.R. § 77.400(c), an MSHA regulation incorporated in 30 C.F.R. Part 77, "Mandatory Safety Standards, Surface Coal Mines and Surface Work Areas of Underground Coal Mines." This regulation provides that:

guards at conveyor-drive, conveyor head, and conveyor-tail pulleys shall extend a distance sufficient to prevent a person from reaching behind the guard and becoming caught between the belt and the pulley.

The scope of Part 77, within which this regulation is contained, is set forth in 30 C.F.R. § 77.1:

This part 77 sets forth mandatory safety standards for bituminous, anthracite and lignite surface coal mines, including open pit and auger mines, and to the surface work areas of underground coal mines.

The Secretary and Penelec disagree with respect to whether this regulation satisfies the Columbia Gas requirement that regulation be directed to specific "working conditions. " The majority, of course, does not reach this issue and I will not dwell upon it here as my concern with the Secretary's exercise of statutory authority, assuming that such statutory authority exists, is not so much with whether there was an applicable MSHA standard in existence at the time that the citation to Penelec was issued, but with whether, in the totality of the circumstances then existing, Penelec could reasonably have known that it was subject to regulation under that standard. In my view, "it has not been demonstrated that the agencies involved, let alone Penelec, had a clear understanding of the jurisdictional lines of demarcation at the time the citations were issued." Secretary of Labor v. Pennsylvania Electric Co., 12 F.M.S.H.R.C. at 1569 (Ford, Chairman, dissenting).

The following chronology, which parallels in most respects the chronology set forth by Chairman Ford in the Commission proceedings, illustrates my concerns with the majority's conclusion that the January 7, 1988, citation to Penelec should be upheld on the strength of the jurisdictional assertion set forth in the citation itself. During the period extending from July 5, 1977, through December 13, 1989, the following events transpired:

1. July 5, 1977 - Following construction of the Penelec treatment plant, MSHA district manager Huntley wrote to Mason, an OSHA operation officer, challenging OSHA's jurisdiction over the cleaning plant based on the conclusion of the Deputy Associate Solicitor for Mine Health and Safety that the plant fell within MSHA jurisdiction.

2. July 28, 1977 - Coal Mine Inspection Supervisor Robert Nelson prepared a memorandum delineating locations at the generating station where Iselin Preparation Company "has or will have control." No specific reference was made to the 5A and 5B conveyors, although the "blending bin" was considered to be part of Iselin. This blending bin, also referred to as Bin No. 2, contains the 5A and 5B head drives.

3. August 25, 1977 - Penelec and MESA representatives met and reached an oral agreement as to areas covered by OSHA and MESA jurisdiction.

4. September 6, 1977 - Penelec representative Herman, a participant in the August 25 the meeting with MESA, prepared a memorandum memorializing his understanding of the agreement which had been reached. "At #2 Bin MESA will have jurisdiction above the top of the bin except for the portions of #5A and #5B conveyors within the structure including the drive units and head pulleys."

5. April 17, 1979 - An MSHA/OSHA Interagency Agreement was drawn up to apprise facilities of the limits of MSHA jurisdiction. The examples given of facilities included with MSHA jurisdiction were closely related to traditional mining activities with jurisdiction ending when the product leaves mine property. The issue of jurisdiction over coal handling at electric power plants was not addressed.

6. Sometime in 1989 - MSHA safety inspector Kopsic testified that beginning in about 1980 he began inspecting the 5A and 5B conveyors and issued citations, including one for inadequate guarding, to Rochester and Pittsburgh Coal Co., the owner of the cleaning plant. He contended that Penelec management must have known of these citations and the consequent assertion of jurisdiction because Penelec employees abated the violations.*fn12

Penelec challenges the allegation that 5A and 5B conveyors were cited (no citations were produced) and denies any knowledge that MSHA jurisdiction was different from what had been memorialized in the September 6, 1977, memorandum. Penelec also denied that it had been issued citations by MSHA covering cleaning plants at other facilities. MSHA conceded that Penelec had not been cited at other plants but stated that the citations had been issued to cleaning plant owners.

7. November 29, 1985 - In a Motion to Dismiss filed with the Commission in Utility Fuels, Inc., Docket No. CENT 85-89, Counsel for the Secretary represented that:

MSHA traditionally has not inspected power plants. Although the Secretary is not able to cite to a particular memorandum incorporating this policy, MSHA and its predecessors have consistently found the production of power to be outside the jurisdiction of the agency. MSHA has taken into account that a portion of the process utilized to produce electric power from coal requires handling and processing coal but has determined that those activities are subsumed in the specialized process utilized to produce electric power, and that the power plant process is more feasibly regulated by OSHA.*fn13

8. January 7, 1988 - The citations in question are issued to Penelec.

9. February 25, 1988 - Orris, manager of safety for Penelec, writes to MSHA district manager Huntley seeking clarification of jurisdiction.

10. April 12, 1988 - Huntley responds by stating that the 1977 Mine Act "extends to all areas which contribute to or play a part in the work of preparing coal." The letter included a list of facilities that MSHA " is currently not inspecting but which MSHA has jurisdiction over and will be inspecting." Conveyors 5A and 5B were included in this list.

11. April 14, 1988 - Huntley sends to the OSHA area director a copy of the April 12th letter to Penelec. There was no response from OSHA challenging MSHA jurisdiction. OSHA staff person Terry Lane testified that the OSHA Philadelphia regional office received a copy of the April 12th letter and "[felt] that the areas outlined in that correspondence [were] clearly within the jurisdiction of MSHA."

12. December 30, 1988 - The ALJ's initial decision finds MSHA jurisdiction over 5A and 5B head drives.

13. January 28, 1989 - At oral argument in a companion case to this one, Westwood Energy Properties v. Secretary of Labor, MSHA, 11 F.M.S.R.C. 2408 (December, 1989), counsel for the Secretary states that coal consumers such as steel mills and aluminum plants may be subject to Mine Act jurisdiction if they engage in coal processing activities. Even though Westwood did engage in such activities, MSHA settled that case and declined to assert jurisdiction.

14. January 31, 1989 - OSHA issues proposed Rule 29 C.F.R. Part 1910 relating to Electric Power Generation, Transmission, and Distribution; Electrical Protective Equipment. In the proposed rule, OSHA stated that the rule was intended to cover work practices at "fuel and ash handling and processing installations such as coal conveyors and crushers." 54 Fed. Reg. 4973-5024 (January 31, 1989).

15. October 10, 1989 - The Commission issues its decision in this matter and remands.

16. December 13, 1989 - The ALJ issues an opinion following remand which notes that the Secretary objected to the scope of the remand order and maintained that Commission review of her internal decision-making processes amounted to an intrusion into privileged areas. The ALJ did not think it necessary to reach this issue.

I believe that notwithstanding the MSHA regulation relied upon in the citation issued to Penelec, the above record of events demonstrates that:

There existed on January 7, 1988 no official Department of Labor policy that assigned coal handling and processing activities undertaken by an electric utility to MSHA's jurisdiction. On the contrary, the last official pronouncement of record prior to January 7, 1988 that addressed such activities was the Secretary's declaration in Utility Fuels. . . that coal handling and processing at power plants was "more feasibly regulated by OSHA."

Secretary of Labor v. Pennsylvania Electric Co., 12 F.M.S.H.R.C. at 1572 (Ford, Chairman, dissenting) (citation omitted).

Under these circumstances, I cannot agree that "the Secretary of Labor sufficiently exercised her authority by issuing citations under the existing MSHA regulations. . . ." Majority Typescript at 11.*fn14 Penelec was given conflicting signals concerning its obligations under the Mine Act prior to issuance of the January 7, 1988, citation. The evidence simply does not demonstrate that Penelec knew in January of 1988, that the 5A and 5B conveyor head drives were subject to MSHA citation.*fn15 In my view, the regulatory confusion highlighted by this case has yet to be resolved. There seems still to be a conflict among the Secretary's position in this case, her position in Westwood and her position with respect to the proposed OSHA regulations. Despite repeated efforts throughout these proceedings to clarify the Secretary's regulatory intent,

the record still exhibits inconsistencies in enforcement policies and practices . . . ; unanswered questions as to whether there is an overall Departmental plan for accommodating jurisdictional tensions between the Mine Act and the [OSH Act] at coal-fired power plants; and a patchwork scheme of inspections that does not adequately address the . . . "whipsaw effects to which an employer can be subjected when important jurisdictional issues appear to be resolved with no assurance that potentially competing agencies have reached a mutual and definitional determination as to their respective roles."

Secretary of Labor v. Pennsylvania Electric Co., 12 F.M.S.H.R.C. at 1569 (Ford, Chairman, dissenting) (citation omitted). Assuming that the Secretary does have statutory authority to regulate MSHA, what is needed is a clear statement by the Secretary regarding jurisdictional limits, which should be enforced prospectively. An employer should not be required to guess what the Secretary's regulatory position will be on any given day.

IV.

Because I am convinced that it makes most sense to view the coal cleaning operation as part of the process of electric power generation rather than as coal preparation, I would find that MSHA lacks jurisdiction to regulate the 5A and 5B conveyor head drives. Alternatively, in view of the Secretary's unclear policy of allocating regulatory responsibility between MSHA and OSHA, I would conclude that even if the Secretary has statutory authority to regulate the head drives via MSHA, she has failed adequately to exercise that jurisdiction. On either ground, I would reverse the Commission's decision.


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