Jim Walter Resources, Incorporated

Plain-English summary

Jim Walter Resources operated underground coal mines in Alabama and maintained a Central Shop and a nearby Central Supply. Judge Jerold Feldman held that the Central Shop was subject to Mine Act jurisdiction because it repaired and maintained mining equipment, had an MSHA identification number, and had long been inspected as a mine facility. He held that the Central Supply was outside Mine Act jurisdiction because its warehouse and supply activities occurred off mine property and were not normally performed by a mine operator as mining work. The judge affirmed eight non-S&S citations in the civil penalty docket for the Central Shop, requiring payment of $440, and vacated the citations in the five contest dockets involving the Central Supply.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 802(g), 802(h)(1), 802(h)(2), 802(i), 803, and 820(i); 30 C.F.R. §§ 41.11, 41.20, 50.20, and 50.30
• Outcome: Eight Central Shop citations were affirmed with a $440 penalty, while the Central Supply contest citations were vacated and the five contest proceedings were dismissed.
• Key point: An off-site repair facility that performs integral mining-equipment maintenance may be a mine, while an off-site supply warehouse is not necessarily covered merely because it serves a mine operator.

Full text (FMSHRC public release)

JIM WALTER RESOURCES, INCORPORATED
May 12, 1999
SE 99-6-R

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041


                      May 12, 1999

JIM WALTER RESOURCES, : CONTEST PROCEEDINGS
INCORPORATED, :
Contestant : Docket No. SE 99-6-R
v. : Citation No. 7665505; 9/23/98
:
SECRETARY OF LABOR, : Docket No. SE 99-7-R
MINE SAFETY AND HEALTH : Citation No. 7665506; 9/23/98
ADMINISTRATION (MSHA), :
Respondent : Docket No. SE 99-8-R
: Citation No. 7665507; 9/23/98
:
: Docket No. SE 99-9-R
: Citation No. 7665512; 9/24/98
:
: Docket No. SE 99-10-R
: Citation No. 7665512; 9/24/98
:
: Central Supply Shop
: Mine ID 01-02515
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 99-66
Petitioner : A.C. No. 01-02515-03521
v. :
: Central Shop
JIM WALTER RESOURCES :
INCORPORATED, :
Respondent :

                     SUMMARY DECISION

Before: Judge Feldman

 These contest proceedings are before me for summary

disposition based on the parties' joint stipulations of material
facts that serve as the basis for their motions for summary
decision. These matters concern whether Jim Walter Resources
Inc.'s (JWR's) Central Machine Shop (Central Shop) and/or Central
Supply Shop (Central Supply) are "mines" subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977
(the Mine Act). Section 3(h) of the Act defines "coal or other
mine" as follows:

 (1) "[C]oal or other mine" means . . .  (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 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).

 Simply stated, JWR's Central Shop and Central Supply are not

located within any specific mine boundary. Rather, they are
located in the vicinity of, and support, JWR's mining operations
at its Nos. 3, 4, 5 and 7 Mines. Central Shop provides
maintenance and repair services to the machinery used at the JWR
mines and its preparation plants. Central Supply furnishes
mining tools, equipment, and major necessities to the JWR mines
such as rock dust, line curtains and hammers and nails.
Additionally, Central Supply serves as the primary source of
parts, tools and other equipment used at Central Shop. Central
Shop has been inspected by the Mine Safety and Health
Administration (MSHA) since 1982. Prior to the September 1998
issuance of the subject contested citations, MSHA has not claimed
nor otherwise exercised jurisdiction over Central Supply.

 JWR stipulates that it will not contest the fact of

occurrence of the subject citations in the event it is determined
that Central Shop and/or Central Supply is subject to Mine Act
jurisdiction. For the reasons discussed below, consistent with
the Commission's basic jurisdictional framework set forth in
Secretary of Labor v. Elam, 4 FMSHRC 5, 7 (January 1982),[1] it
is concluded that Central Shop, but not Central Supply, is
subject to Mine Act jurisdiction. Accordingly, the eight non-
significant and substantial (non-S&S) citations in civil penalty
Docket No. SE 99-66 shall be affirmed. Also consistent with this
decision, JWR's contests in Docket Nos. SE 99-6-R through SE 99-
10-R shall be granted resulting in the dismissal of these contest
proceedings.

 I.  JOINT STIPULATION OF FACTS

 1.  Jim Walter Resources, Inc. (JWR) is an Alabama
 corporation that is engaged in the business of coal
 production.  JWR owns and operates four underground
 coal mines within the state of Alabama.  Those mines
 are the No. 3 mine in Jefferson County and the Nos. 4,
 5, and 7 mines located in Tuscaloosa County.    JWR
 owns and operates a preparation plant at each of their
 four mines.

 2.  JWR owns and operates a Central Shop and a Central
 Supply, located adjacent to one another on JWR
 property, in Tuscaloosa County.  The Central
 Shop/Supply are located within approximately one mile
 of the No. 5 mine, within twenty-five miles of the No.
 3 mine and within six miles of the  Nos. 4 and 7 mines.

 3.  JWR also owns and operates a Training Center and a
 Central Mining Office in the same vicinity.  Neither of
 these facilities has ever been inspected by MSHA.

 a.  Central Shop

 4.  MSHA's inspection reports indicate that the Central
 Shop has been inspected since November 16, 1982.  Since
 that time, the following actions have been performed by
 JWR regarding the Central Shop:

   (a) Pursuant to 30 C.F.R. § 41.11, JWR notified the
 Mine Safety and Health Administration (MSHA) of the
 legal identity of the operator of the Central Shop.
 Accordingly, the Central Shop was issued Federal Mine
 Identification Number 01-02515.

   (b)  JWR has complied with the requirement to notify
 MSHA of any changes to the legal identity report for
 the Central Shop as required by 30 C.F.R. § 41.20.

   (c) MSHA has conducted inspections of  the Central
 Shop at least once each year as identified in Exhibit
 "A" attached hereto.

   (d) MSHA has also conducted the following at the
 Central Shop: noise technical investigation, respirable
 dust technical inspection, electrical investigation,
 code-a-phone spot inspection, and Section 103(g) spot
 inspections.

   (e) The Central Shop has complied with 30 C.F.R. §
 50.20 by preparing and submitting MSHA Report Form
 7000-1 with respect to the reporting of accidents,
 injuries, and illnesses.

   (f) The Central Shop has complied with 30 C.F.R. §
 50.30 by preparing and submitting MSHA Report Form
 7000-2 with respect to the quarterly reporting of
 employment and coal production.

   (g)  During the period of November 1, 1982 through
 November 10, 1998, JWR has paid 43 violations that were
 issued by MSHA as a result of inspections made at the
 Central Shop.

 5.  The Central Shop's function is to provide repair
 services and to maintain electrical and mechanical
 equipment used throughout JWR operations.  The majority
 of the work activities involve the repair, rebuild,
 modification, or overhaul of various types of mining
 equipment.  Typical jobs include the rebuilding of
 longwall stageloaders, continuous mining machines, ram
 cars, scoops, versa tracs, roof bolting machines, man
 buses, locomotives, electrical starter boxes,
 overhauling longwall shields and fabricating chutes and
 hoppers for the preparation plant.

 6.  The workers at the Central Shop are hourly workers
 employed by JWR and are members of the United Mine
 Workers of America (UMWA).  They are supervised by
 management employees.  The Shop operates two shifts
 (formally three shifts until 9/98)  per day, five days
 per week and occasionally performs work on Saturdays
 and Sundays, if the need arises.   Presently, the
 Central Shop employs 9 salary workers and 54 hourly
 workers.  The salaried employees of the Central Shop
 are not members of the UMWA. The salaried personnel of
 the Central Shop consist of a shop manager, coordinator,
 master mechanic, four shop foremen, a maintenance
 clerk/secretary and an accountant who also serves as
 the accountant for Central Supply.

 7.  The equipment that is repaired at the shop is
 transported to and from the shop by JWR employees using
 JWR vehicles.  The equipment that is brought to the
 shop is identified with a particular JWR mine or other
 facility and all charges for materials and labor are
 attributed to that particular mine or other facility by
 the Central Shop.

 8.  The Central Shop provides its services to only JWR
 mines and facilities.

 b.  Central Supply

 9.  (a)  Prior to the instant action, the Central Supply
 has never been inspected by MSHA.

       (b) The Central Supply does not have a Federal
 Mine Identification Number as required by 30 C.F.R. §
 41.11.

 10.  The primary function of the Central Supply is to
 serve as a warehouse of goods, materials and supplies
 that are used in or to be used in JWR's mines,
 preparation plants and the Central Shop.

 11.  The nature of supplies maintained at the Central
 Supply range from conveyor belts and belt structures to
 hard hats and safety glasses to automobile oil filters
 and nails.  The majority of the inventoried goods at
 the Central Supply are used or intended to be used in
 support of JWR's mining operations.  A complete list of
 inventoried items is attached hereto as Exhibit "B".

 12.  The Central Supply does not sell to the public.

 13.  The value of the inventoried goods at the Central
 Supply is approximately $12 million.

 14.  Approximately $7 million of the goods is
 considered on "consignment" while the remaining $5
 million constitutes materials/supplies purchased
 outright by JWR.

 15.  Over 90% of the value of inventoried goods at the
 Central Supply are ultimately used in JWR's mining
 operations.  This figure represents approximately 80%
 of the entire stock of inventoried goods.

 16.  JWR has agreements with approximately 70 vendors
 who place goods on "consignment" at the Central Supply.
 These consigned goods are intended to be used by JWR's
 mining operations, at which time JWR compensates the
 vendor for the goods.  In the event the vendor has a
 need for the consigned goods while still in inventory,
 the vendor retains the right to retrieve the goods from
 JWR's Central Supply.  Such a retrieval of consigned
 goods by a vendor is not a normal, everyday occurrence.

 17.  The delivery of materials and supplies from the
 Central Supply to the mines is accomplished by Central
 Supply employees transporting the goods in a JWR owned
 vehicle.  The Supply has a one ton flat bed truck that
 is used for most deliveries.  The drivers are required
 to have a commercial driver's license.

 18.  Employment at the Central Supply consists of 16
 salaried and 7 hourly personnel.  The 7 hourly
 employees are members of the UMWA.  The salaried
 employees of the Central Supply are not members of the
 UMWA.  The sixteen salaried personnel of the Supply
 consist of the general manager of purchasing and
 materials control, assistant manager of materials
 control, assistant manager of purchasing, materials
 disposition coordinator, warranty claims manager,
 buyer, assistant buyer, purchasing assistant, assistant
 storekeeper/purchasing, assistant store supervisor
 motor program, assistant supervisor of evening shift,
 four materials control analysts and an accountant who
 also serves as the accountant for the Central Shop.
 The Central Supply is open 24 hours per day, 7 days per
 week.  The regular work week is Monday through Saturday
 with the Sunday shifts being staffed through "on call"
 personnel.

 19.  JWR agrees that, should there be a decision
 conferring MSHA's jurisdiction over the Central Shop
 and/or the Central Supply, JWR will pay the proposed
 assessments set forth in the Civil Penalty Proceeding,
 SE 99-66, and will withdraw its related Contest
 Proceedings, Docket Numbers SE 99-6-R,
 SE 99-7-R, SE 99-8-R, SE 99-9-R, and SE 99-10-R.


 II.  FINDINGS OF FACT AND CONCLUSIONS

        a.  Definition of "coal or other mine"

 Section 4 of the Mine Act provides that "[e]ach coal or

other mine, the products of which enter commerce, or the
operations or products of which affect commerce, . . . shall
be subject to the provisions of this Act." 30 U.S.C. § 803.
Under section 3(h)(1) of the Mine Act, "coal or other mine"
includes "lands, . . . structures, facilities, equipment,
machines, tools, or other property . . . used in, or to be
used in, . . . the work of preparing coal . . . ." 30 U.S.C.
§ 802(h)(1). Included in the definition of "coal mine" in
section 3(h)(2) of the Act, 30 U.S.C. § 802(h)(2), are
"machinery, tools [and] equipment . . . placed upon, under,
or above the surface of such [mine]." Section 3(i) of the
Act defines "work of preparing coal" to include such other
mining related work that "is usually done by the operator
of a coal mine. 30 U.S.C. § 802(i). (Emphasis added).

 These matters concern the question of statutory

interpretation of the jurisdictional predicates in section 3
of the Mine Act. The definitions of "coal mine" and "work
of preparing coal" in sections 3(h) and 3(i) are "broad [,]"
"sweeping" and "expansive[,]" Marshall v. Stoudt's Ferry
Preparation Co., 602 F.2d 589, 591-92 93(3d Cir. 1979),
cert. denied, 444 U.S. C 1015 (1980). The first inquiry in
statutory construction is whether the statutory provision is
clear and unambiguous and "whether Congress has directly
spoken to the precise question in issue." Chevron U.S. A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-43 (1984) (referred to as the "Chevron I"
analysis). Congress intended that "doubts be resolved in
favor of inclusion of a facility within the coverage of the
Act." S. Rep. No. 181, 95th Cong., 1st Sess. 14 (1977),
reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2d Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 602
(1978). Thus, Mine Act coverage is to be given the "broadest
possible" scope, Pennsylvania Elec. Co. v. Federal Mine Safety
& Health Review Comm'n, 969 F.2 1501, 1503 (3d. Cir. 1992),
in that the statute "was intended to provide a sweeping definition of the word `mine, encompassing much more than
the usual meaning attributed to it." Bush & Burchett, Inc.
v. Reich, 117 F.3d 932 936 (6th Cir. 1997) (quoting Donovan
v. Carolina Stalite Co., 236 U.S. App. D.C. 264, 734 F.2d
1547, 1551 (D.C. Cir. 1984)).

 Although Congress has articulated that the statutory

definitions of "coal mine" and "work of preparing coal"
should be broadly applied, the issue of whether a broad
range of activities beyond traditional mining is covered by
section 3(h) of the Act has been the subject of frequent
litigation with conflicting results. For example, Courts
have disagreed over whether a power plant that crushes and
screens coal is subject to the Act. See, e.g., Pennsylvania
Elec. Co. v. Federal Mine Safety & Health Review Comm'n, 969
F.2d 1501, 1503 (3rd Cir. 1992) (sizing and cleaning coal by
power plant constitutes coal preparation under section 3(h)
of the Act); cf. Secretary of Labor v. Associated Electric
Cooperative, Inc., CA 8 No. 98-1876, F.3d. (April 20, 1999,
8th Cir.) (coal handling and crushing by power plant more
properly characterized as "manufacturing" than "mining").

 Given the ambiguous nature of the applicability of

section 3(h) of the Act, the analysis shifts to whether the
Secretary's interpretation of section 3(h) of the Act is a
reasonable one. See Chevron, 467 U.S. at 843-44; Coal
Employment Project v. Dole, 899 F.2d 1127, 1131 (D.C. Cir
1989) (referred to as the "Chevron II" analysis). The Mine
Act is a statute designed to ensure safe working conditions
for miners. Therefore, an analysis of the proper
jurisdictional reach of section 3(h) requires consideration
of whether the subject activities involve substantial coal
processing operations that expose workers to the unique
hazards associated with mining. Western Fuels-Utah, Inc.,
19 FMSHRC 994, 998 (June 1997).

        b.   The Central Machine Shop

 While there are numerous cases that apply the Mine Act's

broad jurisdictional mandate to a variety of activities
associated with the preparation of coal, the specific
question of whether a central off-mine site maintenance
facility is subject to Mine Act jurisdiction is not a matter
of first impression. In U.S. Steel Mining, Inc., 10 FMSHRC
146 (February 1988), in virtually identical circumstances to
the facts of this case, the Commission considered the
jurisdictional question concerning a central repair shop
that: (1) was used for the repair and maintenance of
electrical and mechanical coal mining equipment; (2) had an
MSHA ID number and was previously subject to MSHA
enforcement; and (3) was located between ½ mile and 5 miles
from two of U.S. Steel's mines and its processing plant.
The Commission concluded U.S. Steel's maintenance facility
was, in and of "itself," ". . . a separate surface coal mine within the meaning of [section 3(h)(1)] of the Act
. . . ." Id. at 148. In determining the repair activities
were subject to Mine Act regulation, the Commission noted
that U.S. Steel employees were exposed to hazards inherent
in moving heavy equipment, performing electrical work, and
engaging in various grinding, cutting, sharpening and
welding tasks. Id. at 147; see also W. J. Bokus Industries,
Inc., 16 FMSHRC 704,708 (April 1994) (equipment in a
maintenance and storage garage could injure miners working
in the garage).

 In its Motion for Summary Decision, JWR's seeks to

distance itself from U.S. Steel. For reasons that are not
entirely clear, JWR argues the U.S. Steel holding only
imposed Mine Act jurisdiction on equipment rather than the
repair shop itself. (See JWR Motion, subsection (B)(3)(r)).
However, U.S. Steel makes no such distinction. Moreover,
it is a mine facility, not the equipment therein, that is
the predicate for Mine Act jurisdiction. In this regard,
as a general proposition, a haulage truck ceases to be
subject to Mine Act jurisdiction once it exits mine property.
Thus, U.S. Steel is the controlling case law that supports
MSHA's exercise of jurisdiction over JWR's Central Shop.

 Notwithstanding U.S. Steel, the jurisdictional framework

for conferring Mine Act jurisdiction involves an analysis of
whether the particular coal-processing operation sought to
be regulated as "mining" is in the nature of activities
"usually" performed by mine operators engaged in the
extraction of minerals. Secretary of Labor v. Elam, 4 FMSHRC
at 7; 30 U.S.C. § 820(i). As discussed above, the hazards
associated with activities closely related to mining are the
activities Congress intended to regulate under the Mine Act's
statutory scheme.

 The maintenance of mining equipment is an integral part

of the mining process, and proper maintenance is the means
to achieve a fundamental Mine Act purpose, continued
operation of safe equipment. The maintenance function, if
performed improperly, could pose a hazard to miners working
on mine property as well as Central Shop employees.
Accordingly, the Secretary's Motion for Summary Decision of
the Central Shop jurisdictional question in Docket No. SE
99-66 shall be granted. Consequently, consistent with JWR's
stipulation, JWR has agreed to pay the $440.00 civil penalty
proposed by the Secretary for the eight non-S&S citations
that are the subject of Docket No. SE 99-66.

 c.  The Central Supply Shop

 The significant facts that provide the basis for

jurisdiction of the Central Shop are absent with respect
to the Central Supply. Although the Central Shop was
registered as a mine facility and actively inspected by MSHA
since 1982, MSHA previously has not sought to exercise
jurisdiction over Central Supply despite its location
adjacent to the Central Shop. While MSHA is not estopped
from asserting its jurisdiction at the present time, less
deference must be accorded to MSHA's statutory interpretation
of section 3(h) of the Act in view of its inconsistent
enforcement history with regard to the Central Shop as
compared with Central Supply. Cf. General Electric Co. v.
Gilbert, 429 U.S. 125, 140-45 (1976) (less judicial deference
required when agency has taken inconsistent positions in
promulgating interpretative regulations).

 Moreover, as noted above, while Congress intended the Mine

Act's coverage to be broad in scope, the remedial nature of the
Mine Act is not without its limitations. Carolina Stalite,
734 F.2d at 1551. Although the term "miner" has been broadly
applied to include a construction worker, elevator mechanic,
laboratory technician or clerk-typist working at a mine, it
is only the performance of such wide ranging activities on
mine property that confers "miner" status under the Act.[2]
Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285 (D.C.
Cir. 1990); Martha Perando v. Mettiki Coal Corp., 10 FMSHRC
491 (April 1988). For example, in National Industrial Sand
Ass'n v. Marshall, 601 F.2d 689, 704 (3rd Cir. 1979), in
determining whether one is a miner, the Court stated that
"the statute looks to whether one works in a mine, not
whether one is an employee or nonemployee or whether one is
involved in extraction or nonextraction activities."
(Emphasis in original). See also, Cyprus Empire Corporation,
15 FMSHRC 10, 14 (January 1993). Thus, the Court has concluded
that a manufacturer of mining equipment, that sends sales
representatives onto mine property in connection with the
sale of its products, is an independent contractor-operator
subject to jurisdiction of the Mine Act. Joy Technologies
Inc. v. Secretary of Labor, 99 F.3d 991 (10th Cir. 1996).

 However, because a variety of activities performed on

mine property may give rise to Mine Act jurisdiction, such
activities may not provide jurisdiction if performed off mine
site property. Dilip K. Paul v. P.B. - K.B.B., Inc., 7 FMSHRC
1784, 1787 (November 1985) (a mine engineering office located
off mine property is not "a coal or other mine"). Although
Central Supply is a facility engaging in vendor activities
similar to those in Joy Technologies, Central Supply's
activities occur outside mine property. To hold that Central
Supply is a "coal or other mine" subject to the Mine Act
conceivably could subject all vendors of mining equipment
and supplies to mine regulation, a result never contemplated by
Congress.

 In the final analysis, individuals employed by a mine

operator performing sales and supply activities outside mine
property are not "miners" in need of Mine Act protection.
Put another way, mining equipment sales and supply functions,
are, by their nature, usually performed by vendors and
warehouse personnel who are not exposed to hazards normally
associated with mining. Such activities performed off mine
property, whether performed by employees of a mine operator,
or by independent vendors and suppliers, cannot be classified
as "mining" under the Commission's Elam test.

 In this regard, three of the five contested citations

issued at Central Supply involve technical violations
concerning failure to allow MSHA inspections and a reporting
violation. The remaining two citations concern non-significant
and substantial violations with respect to a forklift. Citation
No. 7665508 contested in these matters states, "[t]his
forklift is used to move supplies and material within the
confines of the main supply building." The transfer of
supplies and materials within the confines of a central
supply warehouse are not activities normally performed by
the operator of a mine. Accordingly, the Secretary has
failed to demonstrate the Central Supply Shop is "a coal or
other mine" as contemplated by Congress under section 3(h)
of the Mine Act. Consequently, JWR's Motion for Summary
Decision with respect to its Central Supply shall be granted
and the captioned contest proceedings shall be dismissed.

                          ORDER

 In view of the above, IT IS ORDERED that Jim Walter

Resources Inc., pay, within 40 days of the date of this
Decision, a civil penalty of $440.00 in satisfaction of the
eight citations that are subject of Docket No. SE 99-66.
Upon timely receipt of payment, Docket No. SE 99-66 IS
DISMISSED.

 IT IS FURTHER ORDERED that Jim Walter Resources Inc.'s

contests in Docket Nos. SE 99-6-R, SE 99-7-R, SE 99-8-R,
SE 99-9-R, and SE 99-10-R ARE GRANTED. Accordingly, the
subject citations in these contest proceedings ARE VACATED,
and Docket Nos. SE 99-6-R, SE 99-7-R, SE 99-8-R, SE 99-9-R,
and SE 99-10-R ARE DISMISSED.

                           Jerold Feldman
                           Administrative Law Judge

Distribution:

Guy W. Hensley, Esq., Jim Walter Resources, Inc., P.O. Box
133, Brookwood, AL 35444 (Certified Mail)

William Lawson, Esq. Office of the Solicitor, U.S. Department
of Labor, Suite 150, 100 Centerview Drive, Chambers Building,
Highpoint Office Center, Birmingham, AL 35216 (Certified Mail)

/mh

FOOTNOTES

 [1]: As discussed infra, Elam requires an inquiry into

whether the predicate operations alleged by the Secretary to be
"used in, or resulting from, the work of extracting" coal,
are operations usually performed by the operator of a coal mine.
Section 3(h) of the Act;
4 FMSHRC at 7.

 [2]: Section 3(g) of the Act defines "miner" as "any

individual working in a coal or other mine." 30 U.S.C. § 802(g).