Pennsylvania Electric Company

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Pennsylvania Electric Company for failing to guard two conveyor drives at an electric generating station. The Commission had previously remanded the case so the judge could determine whether the Secretary had properly exercised Mine Act jurisdiction over the cited area. On remand, the Commission evenly split on whether to affirm or reverse, so the judge's decision stood as if affirmed, and the Commission held the order final and subject to judicial review. The Commission also rejected Penelec's procedural challenges to consolidation and reopened discovery.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.400(c)
• Outcome: The ALJ's decision stood as if affirmed after an evenly divided Commission, and the procedural challenges were rejected.
• Key point: An evenly divided FMSHRC leaves the ALJ decision in force as if affirmed and does not prevent judicial review.

Full text (FMSHRC public release)

CCASE:
MSHA V. PENNSYLVANIA ELECTRIC
DDATE:
19900828
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                             August 28, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

 v.               Docket No. PENN 88-227

PENNSYLVANIA ELECTRIC COMPANY

BEFORE: Ford, Chairman; Backley, Doyle and Nelson, Commissioners

         DECISION

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety

and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)("Mine Act"), and is
before us for a second time on review. The Secretary of Labor alleges that
Pennsylvania Electric Company ("Penelec") twice violated 30 C.F.R.
77.400(c) by failing to guard two head conveyor drives at its Homer Cit
Electric Generating Station ("Generating Station" or "Station"). 1/

The primary question before the Commission in our previous review was

whether the cited working conditions were governed by regulations enforced
by the Secretary under the Mine Act, as argued by the Secretary, or by
regulations enforced by the Secretary under the Occupational Safety and
Health Act of 1970, 29 U.S.C. 651 et seq. (1988) ("OSHAct"), as argued by
Penelec. A majority of the Commission

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1/ 30 C.F.R. 77.400(c) states:

            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.

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Page 2

The "head" end of a belt conveyor is the delivery or discharge end.

The "head drive" is the device by which mechanical power is transmitted to
the head pulley of a belt conveyor. See Bureau of Mines, U.S. Department
of the Interior, A Dictionary of Mining, Mineral, and Related Terms 532,
533 (1968).

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held that the Secretary properly could decide to make mine safety and
health standards applicable to the cited area, but remanded the case to
Commission Administrative Law Judge Gary Melick for further proceedings
because the record did not clearly indicate whether the Secretary had
properly asserted Mine Act jurisdiction. Pennsylvania Electric Co.,
11 FMSHRC 1875, 1882 (October 1989)("Penelec"). The Commission stated:

  Because of the pervasive ambiguity in the record on
  the question of whether the Secretary of Labor,
  through MSHA, has properly exercised her authority
  to regulate the cited working conditions... we find
  it appropriate to order further proceedings.

11 FMSHRC at 1885. On remand the judge held that he could not find "any
legally cognizable Secretarial impropriety in exercising her authority to
regulate [the area in question] within the framework of the Act."
12 FMSHRC 123, 124 (January 1990)(ALJ).

                 I.

Chairman Ford and Commissioner Doyle would reverse the judge's

decision and Commissioners Backley and Nelson would affirm. 2/ As a
consequence, the Commission is evenly split, a first-time occurrence at
the Commission. We conclude that the effect of the split decision is to
allow the judge's decision on remand to stand as if affirmed.

 Section 113(c) of the Mine Act authorizes the Commission to delegate

to "any group of three or more members any or all of the powers of the
Commission." 30 U.S.C. 823(c). The Commission has frequently designated
itself as a panel of three members to exercise the powers of the
Commission. The Mine Act does not expressly state that disposition of a
case (whether affirmance or reversal) shall occur through the majority
vote of the Commission or a designated group (panel) of its members. The
legislative history provides some indication that case disposition is to be
by the traditional judicial process of simple majority vote:

             The Commission is authorized to act in panels of
  three members, with a majority of each panel sufficient
  to decide a matter. This organization is patterned
  after that of the National Labor Relations Board and is
  intended to give the Commission a more flexible
  administrative organization in order to facilitate the
  efficient processing of cases before the Commission.

S. Rep. No. 181, 95th Cong., 1st Sess. 47-48 (1977), reprinted in Senate

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2/ Commissioner Lastowka did not participate in the consideration or
disposition of this second review proceeding in this case.

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Subcommittee on Labor, Commit+.e on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 635-36 (1978) ("Legis. Hist.")(emphasis added). However, neither the
Mine Act nor its legislative history addresses the additional subject of
the effect of an evenly divided Commission panel.

In the absence of a definitive indication in the statute and its

history, it is instructive to turn to general principles of federal
adjudication. The United States Supreme Court affirms the decision of the
lower court when the justices are evenly divided. In an early case where
the justices were divided, Chief Justice Marshall, writing for the Court,
held that "the principles of law which have been argued, cannot be settled;
but the judgment is affirmed, the court being divided in opinion upon it."
Etting v. Bank of the United States, 11 Wheat. 59, 78 (1826). In practice,
appellate courts allow the lower court decision to stand when there is an
evenly split decision. In a later case, the Court explained:

  If the judges are divided, the reversal cannot be had,
  for no order can be made. The judgment of the court
  below, therefore, stands in full force.

Durant v. Essex Co., 74 U.S. 107, 112 (1868).

In a somewhat analogous context, courts of appeal have held that

evenly split decisions of the Occupational Safety and Health Review
Commission ("OSHRC") are reviewable. George Hyman Construction Co. v.
OSHRC, 582 F.2d 834 (4th Cir. 1978); Marshall v. Sun Petroleum Products
Co., 622 F.2d 1176 (3rd Cir. 1980). These courts determined that because
an evenly split OSHRC decision is analogous to an evenly split court
decision, the administrative law judge's decision should be allowed to
stand. Id. The courts reasoned that the party losing before the
administrative law judge is placed in a "jurisdictional limbo" unless the
OSHRC order is appealable to the Court of Appeals. Hyman Construction Co.,
582 F.2d at 837. In each case, the court determined that the OSHRC
decision was a final order for purposes of judicial review and therefore
subject to examination "by the next link in the hierarchal chain of
review." Marshall, supra, 622 F.2d at 1180.

 Several courts of appeals, however, have held the OSHRC errs when it

issues a decision with an evenly split vote because "no official action can
be taken by the Commission without the affirmative vote of at least two [of
its three] members." Shaw Construction, Inc. v. OSHRC, 534 F.2d 1183, 1185
(5th Cir. 1976). See also, Cox Brothers, Inc. v. Secretary of Labor,
574 F.2d 465 (9th Cir. 1978). The court in each case determined that the
OSHRC's decision was not a reviewable order within the jurisdiction of the

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Page 6

Court. The holding in each of these cases, however, was based in large
part on language in the OSHAct that is not contained in the Mine Act. 3/

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3/ Section 12(e) of the OSHAct provides that "official action can be taken
only on the affirmative vote of at least two members." 29 U.S.C. 661(f).

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A review of the Mine Act and its legislative history reveals no
intent to limit judicial review of Commission decisions. The purpose of
Congress in authorizing the Commission to act in panels of three or more
members was to provide "a more flexible administrative organization in
order to facilitate the efficient processing of cases." Legis. Hist.
at 636. Adopting the traditional federal judicial model for handling
evenly split decisions of this adjudicatory Commission will advance that
Congressional objective. Accordingly, all Commissioners participating in
this matter hold that this decision is a final order of the Commission
subject to judicial review under section 106 of the Mine Act, 30 U.S.C.

816. Because a majority of the Commission did not vote to reverse th
     decision of the administrative law judge, his decision stands in full
     force, as if affirmed. Set forth in section III of this decision, infra,
     are the Commissioners' separate opinions with respect to the merits of this
     case.

                  II.
     

     Penelec also has raised two procedural matters on review. First,
     Penelec argues that Judge Melick deprived it of the opportunity to resolve
     ambiguities in the record by denying its motion to consolidate this case
     with other cases pending before the judge, which also raise jurisdictional
     issues concerning the Generating Station. The Commission's procedural rule
     provides that an administrative law judge "may ... order the consolidation
     of proceedings." 29 C.F.R. 2700.12. A determination to consolidate lies
     in the sound discretion of the trial judge. In this instance, the judge
     decided not to consolidate the present case, involving two citations that
     had already been tried, decided and appealed to the Commission, with
     challenges to 23 subsequently issued citations that had not yet been tried.
     Instead, the judge stayed the hearing on the subsequently issued citations.
     Given these facts, all Commissioners participating hold that Judge Melick
     did not abuse his discretion in denying Penelec's motion to consolidate.

     Penelec also argues that Judge Melick erred in denying its motion
     to reopen discovery. Penelec maintains that it was unable to present
     adequate evidence at the hearing on remand to establish a basis for
     determining whether the Secretary exercised her jurisdiction appropriately.
     It contends that the judge denied its motion without good cause. See
     29 C.F.R. 2700.55(a). It states that additional discovery was necessary
     because "[o]nly with the Commission's October 1989 decision was Penelec on
     notice that the Secretary might legitimately assert jurisdiction" at the
     Generating Station. Penelec Br. at 32.

We hold that Judge Melick did not abuse his discretion in denying
Penelec's request to take discovery out of time. Penelec waited until

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Page 8

December 1, 1989 to request discovery with respect to the issues remanded
to the judge on October 10, 1989. Penelec has set forth no explanation why
it did not seek to initiate this discovery earlier. Penelec's delay is
particularly puzzling because the judge issued the

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notice of hearing on October 20, 1989 and a prehearing order on November 8,
1989. Instead of seeking discovery within a reasonable time after the case
was remanded, it waited until 12 days before the scheduled hearing to
request discovery. We agree with the judge that Penelec's request for
discovery was untimely and that it failed to show good cause for extending
the time for initiating discovery. Under these facts, all Commissioners
participating hold that the judge did not abuse his discretion.

                III.

The opinions of the Commissioners on the merits of this case follow.

Commissioners Backley and Nelson, in favor of affirming the decision

of the administrative law judge:

A majority of this Commission previously determined that "MSHA

possesses statutory authority to regulate working conditions associated
with Penelec's preparation of coal, and that therefore the Secretary of
Labor could decide to make mine safety standards applicable" to the 5A & 5B
head drives at Penelec's Generating Station. Penelec, 11 FMSHRC at 1882.
This case was remanded to the administrative law judge because the
Commission was unable to determine with any degree of assurance from the
murky record" whether the Secretary had decided to make mine safety
standards or OSHA standards applicable to the head drives. Id. The record
contained no evidence of enforcement activity by OSHA or MSHA prior to the
issuance of the subject citations and no evidence that the Secretary
adhered to the procedures set forth in the MSHA-OSHA Interagency Agreement
("Interagency Agreement"), 44 Fed. Reg. 22827 (1979), for resolution of
jurisdictional conflicts between the two agencies. Penelec, 11 FMSHRC at
1883. The Commission concluded that "[b]ecause of the pervasive ambiguity
of the record on the question of whether the Secretary of Labor, through
MSHA, has properly exercised her authority to regulate the cited working
conditions at Penelec's Generating Station," the case should be remanded
for the taking of further evidence. Penelec, 11 FMSHRC at 1885.

 At the hearing on remand, Inspector John Kopsic, the MSHA inspector

who issued the head drive guarding citations involved in this case,
testified that he regularly inspected the 5A and 5B conveyor belts prior to
the issuance of the subject citations. Remand Tr. 118-19, 122, 124-25,

132. He further testified that he has been regularly inspecting this area
     since 1982 and that he has issued citations for guarding violations at the
     5A and 5B head drives. Id. Based on this "newly developed undisputed
     evidence," the judge found that "MSHA had indeed previously inspected, and
     issued citations for violations at, the subject 5A and 5B head drives."
     12 FMSHRC at 125 n.1. As Penelec presented no evidence to the contrary,

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Page 10

the judge's finding in this regard is supported by substantial evidence.

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Furthermore, MSHA had previously issued citations at these head
drives to Rochester and Pittsburgh Coal Company ("R&P") or its subsidiary
(Iselin Preparation Company), the operator of the coal cleaning plant at
the Generating Station, and, according to Inspector Kopsic, Penelec was
aware of these previous citations because its own employees abated the
violations. Remand Tr. 127, 128-32, 150. The inspector further testified
that on one occasion he had observed that a Penelec supervisor was present
during the abatement of a head drive violation. Remand Tr. 128. Inspector
Kopsic stated that he issued the present guarding citations to Penelec
because the safety director of R&P's coal cleaning plant informed him that
Penelec employees had removed the guards from the head drives and that it
was Penelec's responsibility to maintain that area. Remand Tr. 153. Based
on this evidence, the judge concluded that Penelec was aware of the
previous inspections and violations at the head drives. 12 FMSHRC at 125
n.1. Again, Penelec did not present any evidence on this issue, and
substantial evidence supports the judge's finding.

 Based on the evidence presented at the remand hearing, it is

apparent that the Secretary has consistently applied mine safety and
health standards to the 5A and 5B head drives. No evidence was presented
that the Secretary has applied occupational safety and health standards to
these head drives. Consequently, we conclude that the Secretary has
demonstrated that she has properly exercised her authority to regulate the
working conditions at the cited area under the Mine Act. In addition, the
record makes clear that Penelec had actual or constructive knowledge that
citations had been issued in the past for violations of mine safety and
health standards at the 5A and 5B head drives. Its employees participated
in the abatement of these previous violations. The fact that past
citations were issued to R&P is not controlling. An owner and its
independent contractor are "operators" under section 3(d) of the Mine Act,
30 U.S.C. 802(d), and either, in appropriate circumstances, may be held
liable for violations of safety standards regardless of fault. See e.g.,
International Union, UMWA v. FMSHRC, 840 F.2d 77 (D.C. Cir. 1988). Thus,
the fact that MSHA cited R&P, an independent contractor, rather than
Penelec, the owner, for past violations in the disputed area does not, by
itself, negate MSHA's enforcement history or Penelec's knowledge of it.

The Interagency Agreement was developed, in part, to "provide a

procedure for determining general jurisdictional questions." 44 Fed.
Reg. 22827. In the Commission's previous decision, the majority determined
that the first clear assertion of MSHA jurisdiction in the record was
contained in an April 12, 1988 letter from the MSHA District Manager to
Penelec stating that MSHA was expanding its inspection authority at the
Generating Station to include all areas directly involved in the coal
preparation process. Penelec, 11 FMSHRC at 1883. The record revealed that

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Page 12

a copy of this letter was sent to the OSHA Area Office. On the basis of
this evidence, the Commission questioned whether the Secretary had properly
invoked her jurisdiction through the procedures set forth in the
Interagency Agreement.

The evidence produced by the Secretary on remand makes clear that the

particular area in question has been inspected by MSHA since at

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least 1982 and no evidence was produced to show that OSHA has ever
inspected it. As a consequence, the Interagency Agreement has no bearing
on this case because no question or conflict between OSHA and MSHA existed.
We now know that the Secretary has consistently inspected the head drives
under the Mine Act rather than the OSHAct. As discussed above, Penelec had
notice of this fact.

 Penelec and Edison Electric Institute ("Edison"), amicus curiae,

also question at this stage MSHA's jurisdiction to inspect the head drives.
Because the Commission previously determined that such jurisdiction exists,
we need not respond to these arguments. 4/ We adopt the holding of the
majority in our previous decision that MSHA has jurisdiction over the 5A &
5B head drives.

Accordingly we would affirm the decision of the administrative law

judge.

                Richard V. Backley, Commissioner


                L. Clair Nelson, Commissioner

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4/ We note that Penelec's and Edison's additional argument that MSHA
cannot preempt OSHA's jurisdiction without first promulgating rules and
regulations addressing the working conditions in electric generating
facilities was not previously presented to the judge. Except for good
cause shown, no assignment of error by a party may rely on any question of
fact or law upon which the judge has not been afforded the opportunity to
pass. 30 U.S.C. 823(d)(2)(A)(iii); Union Oil Co., 11 FMSHRC 289, 297
(March 1989). Penelec has not shown any cause why this argument was not
made to the judge. In addition, we note that MSHA does have broad safety
standards in place governing belts and head drives. Thus, MSHA's standards
address the working conditions of the cited area. MSHA is not necessarily
required to develop more particularized standards that apply exclusively to
those portions of electric generating facilities that are subject to its
jurisdiction.

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Chairman Ford, in favor of reversing the decision of the administrative law
judge:

As a member of the majority in the Commission's prior consideration

of this case, 11 FMSHRC 1875, I concurred in the decision to vacate Judge
Melick's initial decision and to remand the matter for the taking of
additional evidence on the jurisdictional issues giving rise to this
dispute. I further concurred in the view that the broadly drawn
definitions of "coal or other mine" and "coal mine" in section 3(h) of
the Mine Act, 30 U.S.C. 802(h), did implicate certain facilities at
Penelec's Homer City Steam Electric Generating Station, such that the
Secretary could assign occupational safety and health enforcement
regarding those facilities to the Mine Safety and Health Administration.

The principal question that led me to join my colleagues in the

majority was whether the Secretary had indeed assigned such enforcement
authority to MSHA. Flowing from that principal question was my concern as
to whether the assignment, if executed, was executed with sufficient
clarity as to have given Penelec adequate notice that its coal handling
activities at the Generating Station would be subject to Mine Act authority
before the enforcement actions at issue were taken. The majority had
concluded that such questions could not be answered on the basis of the
"murky record" before us. 11 FMSHRC 1882. Regrettably, the record
developed on remand and now before us on review is in many respects even
murkier.

As supplemented by the remand proceeding, the record still exhibits

inconsistencies in enforcement policies and practices (some of which the
judge characterized as "bizarre"); unanswered questions as to whether there
is an overall Departmental plan for accommodating jurisdictional tensions
between the Mine Act and the Occupational Safety and Health Act of 1970,
29 U.S.C. 651 et seq. (1982) at coal-fired electric power plants; and a
patchwork scheme of inspections that does not adequately address the prior
majority's concerns respecting 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 definitive determination as to their respective roles." 11 FMSHRC
1885.

For those reasons I must part company with my two colleagues who find

that "the Secretary through MSHA has properly exercised her authority to
regulate the cited working conditions at Penelec's Generating Station." Id.
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.

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Page 15

The record, both initially and on remand, establishes the following

pertinent chronology:

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July 5, 1977 - District Manager Huntley by letter informs William
Mason, OSHA operations officer, that contrary to OSHA's position that
the Iselin Preparation Plant is under OSHA's jurisdiction, the Deputy
Associate Solicitor for Mine Health and Safety (Department of the Interior)
has determined that the Iselin Preparation Plant is under the Mining
Enforcement and Safety Administration's (MESA's) jurisdiction. (Gov.
Ex. 1).

July 28, 1977 - Coal Mine Inspection Supervisor Robert G. Nelson by
Memorandum delineates those locations at the Generating Station where
Iselin Preparation Co. "has or will have control." (Gov. Ex. 2). They
include a "blending bin" subsequently identified at the remand hearing as
being the same as bin No. 2 by Inspector Kopsik (Tr. p. 133). No specific
reference, however, is made to the 5A and 5B conveyors or to their head
drives.

August 25, 1977 - Penelec and MESA meet and reach an oral agreement

as to the jurisdictional lines between MESA and OSHA at the Generating
Station.

September 6, 1977 - R.C. Herman, Penelec representative at the
August 25 meeting, memorializes his understanding of the August 25, 1977
agreement that states in part: "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." (Joint
Ex. 1). (No record of MESA's understanding of the August 25, 1977
agreement has been produced in this proceeding.)

April 17, 1979 - The MSHA/OSHA Interagency Agreement is published
whereby procedures are established for resolving disputes over jurisdiction
between the two agencies. 42 F.R. 22827, 22828.

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
states: "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

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overall power plant process is more feasibly regulated by OSHA."

January 7, 1988 - MSHA Inspector Kopsic issues the two citations on

review alleging violations of 30 C.F.R. 77.400(c) with regard to guarding
at the 5A and 5B head drives at the Generating Station. The citations are
issued to Penelec rather than to the Iselin Preparation Plant as had been
the custom up to that date.

February 25, 1988 - Mr. Richard E. Orris, manager of safety for
Penelec, writes to District Manager Huntley asking for Huntley's position
with respect to MSHA's jurisdiction over facilities at the Generating
Station including the 5A and 5B conveyors, their head pulleys and their
drive units.

April 12, 1988 - District Manager Huntley responds by asserting that

the 1977 Mine Act "extends to all areas which contribute to or play a part
in the work of preparing coal." (Joint Ex. 3). Attached to the letter is a
list of facilities that MSHA "is currently not inspecting but which MSHA
has jurisdiction over and will be inspecting" and includes "[b]in No. 2
including motors, plug shoot probe, control buttons, conveyors 5A and 5B
and all floors."

April 14, 1988 - District Manager Huntley forwards a copy of the
April 12, 1988 letter to Mr. Gary Griess, Area Director of OSHA. (Gov.
Ex. 3). (This letter was apparently lost or misdirected within OSHA since
a duplicate was sent after the Commission's October 10, 1988 decision and
remand and before the judge's December 13, 1989 hearing on remand.
Tr. 157-160).

December 30, 1988 - Judge Melick issues his initial decision finding
Mine Act jurisdiction over the 5A and 5B head drives.

January 31, 1989 - OSHA issues proposed rule 29 C.F.R. Part 1910

relating to Electric Power Generation, Transmission, and Distribution;
Electrical Protective Equipment, wherein the agency states the rule covers
work practices at "[f]uel and ash handling and processing installations
such as coal conveyors and crushers." 54 F.R. 4974, 5009.

June 28, 1989 - At oral argument in a companion case, Westwood Energy
Properties v. Secretary of Labor, MSHA, 11 FMSHRC 2408 (December 1989),
counsel for the Secretary indicates that other coal

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consuming industries such as steel mills and alumina plants may be subject
to Mine Act jurisdiction if they engage in coal processing activities.
(Oral Argument Tr. pp. 22-23, 25-26).

  October 10, 1989 - The Commission issues its
  decision and remand in this case.

  December 13, 1989 - Judge issues his decision on
  remand.

 If there is a consistent or even discernible pattern of enforcement

in the above chronology, I fail to see it. Nor does Inspector Kopsik's
testimony on remand serve to resolve or reconcile the discrepancies set
forth above. While he testified to having inspected the 5A and 5B
conveyors including the head drives and to having issued citations thereon
prior to January 7, 1988, his testimony is equivocal as to the locations of
the violations. Tr. 123. He had no recollection of the dates when the
citations were issued and it appears that the citations, when issued, were
issued because Iselin employees were exposed to the alleged hazards cited.
Tr. 155. Unfortunately, none of the citations Inspector Kopsik testified
to was introduced into evidence so as to document his generalized testimony
with respect to the scope of his pre-1988 inspections at the Generating
Station. In any event, regardless of what Inspector Kopsik and his
immediate supervisors considered to be the scope of Mine Act jurisdiction
at the Generating Station, 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, supra, that coal handling and processing at power plants was
"more feasibly regulated by OSHA."

Furthermore, there are a number of other anomalies revealed on remand

that confound any productive inquiry into the jurisdictional issues placed
before the Commission in this case. First, it appears that for several
years the jurisdictional lines between MSHA and OSHA were determined by the
union affiliation of the employees in the various locations throughout the
Generating Station. That rule of thumb seems to have been imposed early on
(See attachment to the MESA memorandum of July 28, 1977 identified as Gov.
Ex. 2 and Tr. pp. 97-102.) and was only officially rescinded in District
Manager Huntley's letter of April 12, 1988 (Joint Ex. 3). Such a
distinction assuredly has no foundation in the Mine Act.

Second, for enforcement purposes MSHA considers the Iselin
Preparation Company as the mine "operator" and identifies it as such, while

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Page 19

the agency considers Penelec an "independent contractor" to Iselin. (Once
the January 7, 1988 citations were issued, MSHA required Penelec to obtain
a "contractor" identification number. Tr. p. 88). In reality the Iselin
Preparation Plant is owned by Penelec but is operated by Iselin, Penelec's
independent contractor and a subsidiary of the Rochester and Pittsburgh
Coal Company. Thus, the enforcement scheme

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employed by MSHA is based upon a characterization that is the complete
obverse of the actual contractual relationship obtaining at the Generating
Station.

Third, on review the Secretary takes the position that all fuel

handling facilities at the Generating Station that handle "run of mine"
coal are subject to Mine Act jurisdiction and MSHA enforcement while all
facilities handling processed coal are subject to OSHA jurisdiction and
enforcement. (Secretary's Brief, p. 21). Yet the schematic "coal
flow diagram," introduced in the initial hearing as Exhibit B, clearly
indicates that the Huntley letter of April 12, 1988 sought to extend
MSHA's jurisdiction over facilities solely dedicated to the handling of
processed coal. For example, the bottom of the diagram depicts a route
for truck-delivered pre-processed coal that completely bypasses the
processing facilities at the Generating Station and delivers the coal
directly to generating unit 3 of the power plant. Nevertheless, the
schematic identifies this bypass as subject to MSHA's jurisdiction.

In sum, the above evidence of record leads me to conclude that

MSHA's authority to regulate the cited conditions at Penelec's
Generating Station has not been properly exercised inasmuch as Penelec
had insufficient and conflicting notice as to the scope of Mine Act
authority up to the time the citations were issued in early January of
1988. Accordingly, on that basis alone I would reverse the judge and
vacate the citations.

On a more fundamental level, however, the record thus far adduced

calls into question whether dual enforcement by both MSHA and OSHA at the
Homer City Generating Station and others similarly situated comports with
Congressional intent and achieves the goals of the respective statutes from
which the two agencies derive their authority and purpose.

 In her brief on review the Secretary acknowledges a contradictory

position respecting Mine Act jurisdiction over power. plants taken by her
predecessor in Utility Fuels, supra. Secretary's brief, p. 12, but does
not repudiate it. It could therefore be inferred that jurisdiction over
the coal handling facilities at electric generating plants may be decided
on an ad hoc, case by case basis. Such an approach, however, gives
utilities and other coal consumers little guidance and less notice as to
what their compliance responsibilities are to be from one location to
another or from one day to another. 1/ It would also frustrate any attempts
to develop corporate-wide safety programs for utility companies with
multiple generating stations - some under OSHA jurisdiction alone, and some
under combined MSHA and OSHA jurisdiction.

---

---

Page 21

1/ In that connection, I note with interest the settlement agreement
approved on August 3, 1990 by the judge in Westwood Energy Properties,
supra, a companion case to the instant case, whereby MSHA agrees not to
assert jurisdiction over an electric power generating station and its fuel
handling facilities located on an abandoned coal mine site even though the
fuel, known as culm, contains refuse coal and undergoes processes similar
to those at issue here. 12 FMSHRC

---

Page 22

~1574
Such a lack of consistency and uniformity can have negative safety
consequences even at a single location such as the Homer City Station. For
instance, MSHA electrical standards for surface coal mines and facilities
incorporate by reference the provisions of the National Electric Code
(NEC). The NEC, however, explicitly exempts electric utility installations
from its coverage. National Electric Code, 90-2(b)(5) (1971). The irony
of this contradiction was not lost on the Fourth Circuit Court of Appeals
when it held that a utility was not an independent contractor for purposes
of the Mine Act: "MSHA would apply to electric utilities a code which by
its very terms excludes electric utilities." Old Dominion Power Co. v.
Donovan, 772 F.2d 92, 99 (1985). 2/

 These specific standard-based conflicts attest to the "whipsaw"

effects that concerned the majority in our prior decision. Viewed against
the safety and health goals of the two statutes in question, however, these
conflicts loom larger than mere inconveniences to those industrial entities
subject to dual enforcement: they constitute a potential for confusion that
can actually diminish safety as the Fourth Circuit warned. Surely Congress
could not have intended such a contrary result.

 The Mine Act's jurisdictional map as drawn by Congress is to be

found in Section 3, specifically in the definitions of "coal or other mine"
and "coal mine." Those definitions are not models of verbal brevity and
clarity, but it is generally accepted that the definitions were broadly
drawn in order to avoid questions of jurisdiction such as those that arose
in the course of the Buffalo Creek disaster wherein the Bureau of Mines,
MSHA's predecessor, encountered challenges to its authority to regulate
impoundments and retaining dams directly associated with coal mining. See
S. Report No. 95-181, 95th Cong., 1st Sess. 14, reprinted in U.S. Code
Cong. & Admin. News 1977, 3401, 3414.

---

2/ Amicus Edison Electric Institute (EEI) argues that even if a clear line
of demarcation could be drawn between those areas subject to MSHA
jurisdiction and those subject to OSHA jurisdiction at a single location,
inconsistencies between the respective standards of the two agencies could
have adverse consequences for employee safety. For example MSHA standards
require a lock out and tagging system while repairs are made on electrical
systems while OSHA permits utilities to employ a tagging system only.
Compare 30 C.F.R. 77.501 with 29 C.F.R. 1926.950(d). Similar differences
arise with respect to clearances between mobile equipment and overhead
power lines. Compare 30 C.F.R. 77.807.2 with 29 C.F.R. 1926.950(d)
(Table V-1); 952(c)(2). EEI argues that such conflicting compliance
requirements would complicate equipment design as well as employee safety
work rules and training, and goes on to quote the Fourth Circuit in
Dominion, supra: "Requiring electric utility employees suddenly to adhere

---

Page 23

to conflicting standards depending on their job location can only lead to
danger, especially where work around high voltage is involved." 772 F.2d
at 99. From a safety standpoint, the arguments of amicus and the
conclusions of the Fourth Circuit are most compelling.

---

Page 24

~1575
The definition of "coal or other mine," set forth in section 3(h)(1)
of the Act is divided into three parts: (A) an area of land from which
minerals are extracted; (B) private ways and roads appurtenant thereto; and
(C) a panoply of facilities and structures associated with the extraction,
milling, and preparation of coal and other minerals. Traditionally, the
three subparts of section 3(h)(1) have been considered separate and
discrete so that an entity falling within any one of the three could
generally constitute a "mine" for purposes of the Act. Donovan v. Carolina
Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984). Such a reading of the
definition has led the Secretary here to argue Mine Act jurisdiction over
Penelec's 5A and 5B head drives since they are "equipment" used in "the
work of preparing coal" which is in turn defined in section 3(i).

A plausible alternate reading of section 3(h)(1) would hold that

subparts (B) and (C) are subordinate to subpart (A), i.e., that the
facilities and structures referred to in (C) are those associated with the
"area of land" referred to in (A). This alternate reading of section
3(h)(1) is more clearly reflected in the definition of "coal mine," section
3(h)(2), derived verbatim from the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. 801 et seq. (1972).

 Close analysis of section 3(h)(2) indicates that the facilities

listed therein are all delimited by a geographical referent: the "mine" as
that is generally and traditionally understood. Stripped of all extraneous
language except that necessary for discussion here, section 3(h)(2) would
read as follows:

  Coal mine means an area of land and all ... facilities
  ... placed upon ... or above the surface of such land
  ... used in the work of extracting ... bituminous coal
  ... and the work of preparing the coal ... and includes
  custom coal preparation facilities.

Put another way, the definition could be viewed as a pyramid, the

delimiting and all-encompassing base of which is "an area of land" and the
apex of which is "custom coal preparation facilities."

To date the Commission has not exercised strict adherence to the

traditional interpretation of "coal or other mine." If it had, Oliver W.
Elam, Jr. Co., 4 FMSHRC 5 (January 1982) would have been decided
differently. In Elam the Commission held that a commercial dock loading
operation that broke and crushed coal for easier loading was not a "mine"
even though, by a strict reading of sections 3(h)(1) and 3(i), it was a
"facility" and it engaged in "the work of preparing coal" to the extent
that it engaged in "breaking," "crushing" and "loading" coal. Similarly,

---

Page 25

strict adherence to the alternative interpretation of sections 3(h)(1) and
3(h)(2), proferred above, would result in an overly circumscribed scope of
jurisdiction that would limit Mine Act authority to those facilities
located on the same parcel of land from which the coal is extracted.

A rational path between the two extremes and one that comports

---

Page 26

~1576
with Congressional intent is that devised by the Commission in Elam:
that one looks not only to the facility or activity in question but also
'into the nature of the operation performing such activities" Id. p. 7.
In other words, as pithily expressed by Commissioner Doyle in her earlier
dissent, Congress did not intend MSHA "to follow the coal wherever it might
go." 11 FMSHRC 1890.

The "nature" of Penelec's operation is electric power generation.

The feedstock for that power generation could be oil, gas, uranium, culm or
coal. The fact that coal was the chosen feedstock here does not compel a
conclusion that the 5A and 5B head drives constitute a "mine" for purposes
of the Act.

At some point one has to look up from the text of the statute and

view the jurisdictional question through the lens of common sense and
practicality, mindful that Congress intended to regulate a specific and
identifiable sector of commerce by passing the Mine Act. I conclude that
Penelec's coal handling facilities, including the 5A and 5B head drives, do
not fall within that sector nor within the range of facilities meant to be
included in sections 3(h)(1) and 3(h)(2).

That conclusion is buttressed by the record adduced here. Dual

jurisdiction between OSHA and MSHA at Penelec's Generating Station and
others similarly situated, with its attendant potential for conflicting
compliance requirements, can have negative consequences for safety in
contravention of the Congressional purposes at the heart of both the Mine
Act and the Occupational Safety and Health Act.

 Accordingly, upon careful consideration, I would vacate the citations

at issue for lack of jurisdiction and dismiss the proceeding.

                  Ford B. Ford, Chairman

---

Page 27

~1577
Commissioner Doyle, in favor of reversing the decision of the
administrative law judge:

For the reasons set forth in my dissent, a copy of which is

attached, I disagreed with the Commission's earlier determination that
"MSHA possesses statutory authorization to regulate working conditions
associated with Penelec's preparation of coal ..." 11 FMSHRC 1875, 1882
(October 1989). Nothing in either the administrative law judge's decision
on remand or the decision affirming that decision dissuades me from my
earlier view that the operations cited by the Secretary are not subject to
the jurisdiction of the Mine Act. Accordingly, I would reverse the judge
and dismiss the case against Penelec.

              Joyce A. Doyle, Commissioner

---

Page 28

~1578
Commissioner Doyle, dissenting:

The respondent, Pennsylvania Electric Company ("Penelec") is the

operator of an electric power generating station and has for some years
been doing on-site processing of some of the coal used at of its generating
station, in order to insure compliance with EPA emission standards, issued
in 1977. The coal conveyor cited in this case transports coal received
from the Helen and Helvetia Mines between bins on the generating station
grounds, most of the coal eventually going to the cleaning plant. Trucked
coal is transported on different conveyors with only the run-of-mine
portion being diverted to the cleaning plant.

In January 1988, MSHA for the first time inspected the head drives of
the 5A and 5B conveyors and sometime thereafter an MSHA district manager
advised Penelec that MSHA was also asserting jurisdiction over additional
areas of the power plant.

The case before us deals only with alleged violations with respect to
the head drives and was submitted on stipulated facts. The administrative
law judge found in favor of MSHA and Penelec petitioned for review,
asserting that it was not subject to the Mine Act based on:

1. The plain language of the statute and its legislative history;

2. Its work not being that usually performed by an operator of a coal
   mine;

3. Its being the ultimate consumer of the coal.

   The majority of the Commission finds that the processes performed at
   Penelec's plant "are performed to prepare the coal to meet particular
   specifications and emission requirements" and are thus "activities ...
   usually performed 'by custom preparation facilities, undertaken to make
   coal suitable for a particular use or to meet market specifications.'"
   Slip op. at 6. The majority also finds Penelec's work to be "the type of
   work 'usually done by the operator of [a] 'coal mine.'" Slip op. at 7.
   They discount any exemption for the ultimate consumer of coal and, based on
   the language of the statute, conclude that the Secretary "properly could
   decide to make mine safety standards applicable to the disputed area."
   They are, however, unable to determine from the record whether the
   Secretary has made such a determination. Slip op. at 8. The majority
   cites numerous factors both within and outside of the record that show
   conflicting indications as to which agency in the Department of Labor
   exercises safety and health authority over operations such as Penelec's.
   Because of this ambiguity, they remand the matter to the administrative law

---

Page 29

judge for the taking of further evidence on the jurisdictional question and
the entry of a new decision.

---

Page 30

~1579
I disagree that the head drives of the 5A and 5B conveyors fall
within the definition of a "coal mine" as set forth in the Mine Act or
that they are subject to that jurisdiction simply because, in some
instances, they convey run-of-mine coal to the preparation plant, as
opposed to conveying processed coal. I further believe that the case
should be decided on the record before us rather than being remanded for
the taking of additional evidence.

Section 3(h), 30 U.S.C. 802(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. In making a determination
  of what constitutes mineral milling for purposes of
  this Act, the Secretary shall give due consideration to
  the convenience of administration resulting from the
  delegation to one Assistant Secretary of all authority
  with respect to the health and safety of miners
  employed at one physical establishment;
  (2) For purposes of titles II, III, and IV, "coal mine"
  means 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, lignite, or anthracite from its natural deposits
  in the earth by any means or method, and the work of
  preparing the coal so extracted, and includes custom
  coal preparation facilities.

The "work of preparing coal" is defined.in section 3(i), 30 U.S.C.

---

Page 31

802(i), as follows

---

Page 32

~1580
[i] "work of preparing the coal" means the breaking,
crushing, sizing, cleaning, washing, drying, mixing,
storing and loading of bituminous coal, lignite, or
anthracite, and such other work of preparing such coal
as is usually done by the operator of the coal mine.

A portion of the legislative history pertaining to these sections

has been widely quoted in determining Mine Act coverage. That language
states that the definition of a mine is to be given the broadest possible
interpretation and that doubts should be resolved in favor of inclusion.
However, examination of that entire passage of the legislative history
indicates a context in which Congress was contemplating regulation of mines
in a more traditional sense. The complete passage reads as follows:

             Thus, for example, the definition of 'mine' is
  clarified to include the areas, both underground and
  on the surface, from which minerals are extracted
  (except minerals extracted in liquid form underground),
  and also, all private roads and areas appurtenant
  thereto. 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. The collapse of an unstable dam at Buffalo
  Creek, West Virginia, in February of 1972 resulted in
  a large number of deaths, and untold hardship to
  downstream residents, and the Committee is greatly
  concerned that at that time, the scope of the authority
  of the Bureau of Mines to regulate such structures
  under the Coal Act was questioned. Finally, the
  structures on the surface or underground, which are
  used or are to be used in or resulting from the
  preparation of the extracted minerals are included in
  the definition of 'mine'. The Committee notes that
  there may be a need to resolve jurisdictional
  conflicts, but it is the Committee's intention that
  what is considered to be a mine and to be regulated
  under this Act be given the broadest possibly [sic]
  interpretation, and it is the intent of this Committee

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Page 33

  that doubts be resolved in favor of inclusion of a
  facility within the coverage of-the Act." S. Rep.
  No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted
  in U.S. Code Cong. & Admin. News 1977, 3401, 3414.

While that language is expansive, it is mine oriented, and it cannot be
forgotten that the Act was intended to establish a "single mine safety

---

Page 34

~1581
and health law, applicable to all mining activity." S. Rep. No. 461,
95th Cong., 1st Sess. 37 (1977) (emphasis added). "The statute is aimed at
an industry with an acknowledged history of serious accidents." Marshall
v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 594 (3d Cir. 1979). 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 as only recently
asserted by the Secretary. 1/ Indeed, the courts have recognized that 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)." Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1551 (D.C. Cir.
1984).

 I recognize that, in addition to considering Congress' concerns as

set forth in the legislative history, deference is generally to be accorded
interpretations by the agency charged with enforcing the law. Here,
however, the record contains no evidence that, since the Mine Act became
effective in 1978, the Secretary has made any previous attempt, either by
the issuance of regulations or otherwise, to include electric power plants
within the Act's coverage or to put the operators of such facilities on
notice of liability under the Mine Act. Nor does the record indicate that
the efforts of a district manager to bring Penelec's facility within its
coverage represents anything more than the district manager's own personal
interpretation of the Mine Act.

 It should be noted that the Secretary's counsel stated at oral

argument that resolution of this case rests solely on the language of the
Mine Act itself, which he asserted mandates coverage, and has nothing to
do with deference to the Secretary's interpretation of the Mine Act.
Tr. 32, Oral Argument, June 28, 1989. It is not surprising that the
Secretary eschews deference to her interpretation of this portion of the
Mine Act since the Secretary's policy with respect to whether electric
utilities come within Mine Act coverage has been exhibited in a variety of
ways as follows:

1. Her implied interpretation that coal handling at electric power

generating stations does not come within the Mine Act, based on her failure
to assert such jurisdiction for approximately ten years after passage of
the Mine Act.

---

1/ This position was advanced by the Secretary during oral argument before
the Commission in Westwood Energy Properties v. Secretary of Labor, MSHA,
PENN 88-42R, Tr. 26, June 28, 1989.

---

Page 35

~1582

2. Her position as set forth in an earlier Commission case 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 out has
   determined that those activities are subsumed in
   the specialized process utilized to produce electric
   power, and that the overall power plant process is
   more feasibly regulated by OSHA.

Utility Fuels Inc., Docket No. CENT 85-59 (Sec. Motion to Dismiss,
November 29, 1985).

3. Her position that coal handling at electric utilities comes within
   coverage of the Mine Act, as asserted in this case.

4. Her position that coal handling at electric power generating
   facilities is governed by the OSHAct, as set forth in regulations recently
   proposed by OSHA for the operation and maintenance of electrical power
   generation facilities, which regulations include detailed provisions
   governing coal handling and processing at those facilities. 54 Fed.
   Reg. 4974-5024 (1989).

   5. Her position that OSHA's proposed rules would apply only to
      electric generating facilities using already processed coal and that
      facilities using run-of-mine coal would be subject to Mine Act
      jurisdiction, as asserted by her counsel at oral argument before the
      Commission in this case. Tr. 24, 29, 33, Oral Argument, June 28, 1989. 2/

   Because her interpretations have been neither longstanding nor
   consistent, any deference that would ordinarily be due to the Secretary in
   interpreting the Mine Act is not appropriate to this instance. See e.g.,
   I.N.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987); American Mining Congress v.
   EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987); Sec. v. Beth-Energy Mines,
   11 FMSHRC 1445, 1451 (August 1989); Sec. v. Florence Mining Co., 5 FMSHRC
   189, 196 (February 1983).

   ---

   2/ Since some conveyors in Penelec's operation transport coal that meets

---

Page 36

the emission standards without further processing, those conveyors would,
under this theory, presumably remain subject to OSHA jurisdiction rather
than MSHA jurisdiction, a position that seems to belie that any
consideration was given "to the convenience of administration resulting
from the delegation to one Assistant Secretary of all authority with
respect to the health and safety of miners employed at one pHysical
establishment," as required by Section 3(h) of the Mine Act, 30 U.S.C.
$802(h)(1).

---

Page 37

~1583
I also view the Commission's holding today as inconsistent with our
precedent. The Commission previously found that a commercial dock in which
coal was stored, broken and crushed did not fall within the coverage of the
Mine Act because the coal preparation was not done to "meet customers'
specifications nor to render the coal fit for any particular use." MSHA v.
Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 8 (January 7, 1982). After noting
that the Commission had concluded in Elam that the Mine Act requires an
inquiry "not only into whether the operation performs one or more of the
listed work activities [in section 3(i)], but also into the nature of the
operation performing such activities," the Commission today avoids an
examination of the nature of Penelec's operation and finds that, because
the station's coal must meet "particular specifications and emissions
requirements," an electric power generating plant is really a coal mine.
Slip op. at 6. (emphasis in original).

I am unable to find any basis in either the statute or the legislative

history for the distinctions made by either the Secretary (if the conveyor
belt moves processed coal, OSHAct governs; if it moves run-of-mine coal,
Mine Act governs) or the Commission majority (if coal processing is done
other than to meet customer specifications, no. Mine Act coverage; if coal
is processed to meet "particular specifications," Mine Act coverage) nor do
I see that these distinctions have anything to do with the Mine Act's
overall aim, which is to regulate the safety and health of miners. Rather,
I think these artificial distinctions have arisen as a result of various
words and phrases of Mine Act definitions having been examined in
isolation, with no consideration being given to Congress' overall aim, and
with no consideration being given to the Commission's language in Elam,
supra, that requires inquiry into "the nature of the operation" as well as
examination of the particular operations being performed. 3/ Had Congress
wanted to regulate not only mines but electric power generating stations,
steel mills and other coal consumers, I think it would surely have given
some indication of that intent.

---

3/ As noted by the United States Court of Appeals for the District of
Columbia Circuit, statutes "must be interpreted in light of the spirit in
which they were written and the reasons for their enactment." General Serv.
Emp. U. Local No. 73 v. N.L.R.B., 578 F.2d 361, 366 (D.C. Cir. 1978). In
the same vein, Judge Learned Hand observed that "the duty of ascertaining
[the] meaning [of a statute] is difficult at best and one certain way of
missing it is by reading it literally..." See Monarch Life Ins. Co. v.
Loyal Protective Life Ins. Co., 326 F.2d 841, 845 {2d Cir. 1963).

---

Page 38

~1584
In determining what constitutes a "coal mine" as defined by the Mine
Act, the majority also dismisses out of hand the precedential value of any
cases decided under the Black Lung Benefits Act. 30 U.S.C. 901 et seq.
(1982). I do not believe those cases can be so lightly dismissed. The
majority has determined that these cases lack precedential value because
"black lung benefits are financed by a trust, funded by a tax on 'coal sold
by producers,'" whereas "the Mine Act's goal is to assure safe and
healthful working conditions for the nation's miners." Slip op. at 8,
n. 7. "Under the Mine Act 'coal mine' is defined in broad terms to better
effectuate the salutory effects of that goal." Slip op. at 8, n. 7. In
fact, the definition of "coal mine" set forth in section 3(i) of the Mine
Act specifically applies not only to the Mine Act but also to the Black
Lung Benefits Act. I find nothing in the Mine Act, the Black Lung Benefits
Act or the legislative history that suggests the term is to be construed
differently for purposes of determining Mine Act coverage than in
determining Black Lung benefits coverage. And while the majority quotes
the court in Stroh v. Director, Office of Workers' Compensation Programs,
810 F.2d 61 (3d Cir. 1987) to the effect that the function of a miner
seeking black lung benefits should be "integral to the ... preparation of
coal, not ancillary to the delivery and commercial use of processed coal"
(slip op. at 8, n. 7) as additional evidence of the irrelevance of the
Black Lung cases, I view the test developed by the Stroh court and other
courts for eligibility for Black Lung benefits as quite relevant in
determining when an operation falls within the definition of a "coal mine"
as set forth in the Mine Act. 4/ In fact, the United States Court of
Appeals for the Third Circuit, in deciding a black lung case, made specific
reference to its earlier holding in Marshall v. Stoudt's Ferry Preparation
Co., 602 F.2d 589 (3d Cir. 1979), a Mine Act case as authority for its
construction of the terms "coal mine" and the "work of preparing coal."
Dowd v. Director, OWCP 846 F.2d 193, 195 (3d Cir. 1988).

---

4/ The test set forth is Stroh and earlier cases for determining
eligibility for black lung benefits involves a two-prong test, the first
being a "situs" test, which requires work in or around a coal mine or coal
preparation facility and has required the courts to construe the terms
"coal mine," and "work of preparing coal" as defined in section 3 of the
Mine Act. The second prong is the "function" test referred to by the
majority, which require that the claimant's job be "integral to the
extraction or preparation of coal, not ancillary to the delivery and
commercial use of processed coal." It should be noted that, if one agrees
with the Secretary and the majority that Penelec's operations include "coal
preparation," those of Penelec's employees who work in such preparation
would fall within the definition of "miner" set forth in the Black Lung
Benefits Act, i.e., "... any individual who works or has worked in or
around a ... coal preparation facility in the ... preparation of coal."

---

Page 39

30 U.S.C. 902(d).

---

Page 40

~1585
The Secretary also asserts that the Black Lung cases are f no avail
to Penelec because they involve "the handling of coal that already had
been prepared.' Sec. br. at 14. I believe the Secretary misreads those
cases. In the cases to which she refers the courts have made the
determination, as part of their construction of the terms "coal mine" and
"the work of preparing coal," that once coal has entered the stream of
commerce or reached the ultimate consumer, coal preparation has been
completed and that, thus, the facilities at which those claimants worked
did not fall within the definitions of "coal mine" or "work of preparing
coal" set forth in sections 3(h) and 3(i) of the Mine Act. Based on their
determination that the term "coal preparation" was much narrower in scope,
the claimants were found ineligible for benefits. In Eplion v. Dir., OWCP,
794 F.2d 935 (4th Cir. 1986), cited by the Secretary, the mine operator
washed coal for a second time because of dust complaints. Because the
washing was "not necessary for processing of the coal into its marketable
form," the court declined to extend the definition of a "coal mine" to
include that facility. Eplion v. Director, OWCP, supra, at 937. (emphasis
added). Likewise, the court in Southard found that the "preparation of
coal occurs precedent to its retail distribution and consumption."
Southard v. Director. OWCP. 732 F.2d 66, 69 (6th Cir. 1984). Accord
Director, OWCP v. Ziegler Coal Co., 853 F.2d 529, 536 (7th Cir. 1988);
Johnson v. Weinberger, 389 F. Supp. 1296 (S.D. W.VA. 1974).

Also, as noted by the Secretary, the Third Circuit in Dowd, found the

claimant to be a miner, but in so doing stressed that "the claimant's
employer ... does not consume the coal, and does not utilize coal to
produce a product other than coal." Dowd, supra, at 195. As further noted
by the Secretary, the court in Stroh found the claimant to be a miner but
also emphasized that the "processing plant to which Stroh delivered was not
an ultimate consumer..." Stroh, supra. at 64. Similarly, the Fourth
Circuit in Roberts v. Weinberger found the claimant to be a miner, stating
that coal is extracted and prepared when it is "in condition for delivery
to distributors and consumers." Roberts v. Weinberger, 527 F.2d 600, 602
(4th Cir. 1975). These cases, while not affirmatively holding that coal
consumers do not fall within the definition of "coal mine," expressly limit
their holdings to facilities that are not coal consumers.

As noted above, I believe that, while the definition of "coal mine" as

set forth in the Mine Act is to be broadly interpreted, the interpretation
is not without limitations. I am of the opinion that the plain language of
the statute does not bring Penelec's operation within coverage of the Mine
Act, that the legislative history does not suggest the breadth of coverage
asserted by the Secretary and that the

---

Page 41

~1586
Secretary's interpretation, as set forth in this case, is not
entitled to deference. In addition, I am not convinced that ultimate
consumers, engaged in the production of a product other than coal are
subject to Mine Act jurisdiction.

For the foregoing reasons, I would reverse the judge and dismiss the
case against Penelec.

Distribution

John P. Proctor, Esq.
Scott W. Clearwater, Esq.
Timothy N. Atherton, Esq.
Bishop, Cook, Purcell & Reynolds
1400 L Street, N.W.
Washington, D.C. 20005

Carl C. Charneski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Stephen C. Yohay, Esq.
Jones, Day, Reavis & Pogue
1450 G Street, N.W.
Washington, D.C. 20005

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041