Jewell Smokeless Coal Corp.

Plain-English summary

Jewell Smokeless Coal Corporation operated an equipment shop in Virginia that maintained and repaired bulldozers, trucks, loaders, and other equipment used at coal mines, a coal tipple, and a coke facility. The operator argued that the shop was outside MSHA jurisdiction because it had no mine identification number and worked on equipment used at both mine and non-mine facilities. Judge Avram Weisberger found that the shop's equipment supported mine construction, road work, and pond work, which were integral to extracting coal under the Mine Act's broad definition of a coal mine. He granted the Secretary's motion for summary decision, denied the operator's motion, and ordered payment of the $59 civil penalty for the two violations.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.1301(c)(6) and 30 C.F.R. § 77.1301(c)(9)
• Outcome: The operator's jurisdictional challenge was rejected, the two violations were upheld, and a $59 civil penalty was ordered.
• Key point: A facility that maintains equipment used in mine construction and related coal-extraction work may fall within MSHA jurisdiction even without its own mine identification number.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. JEWELL SMOKELESS COAL
DDATE:
19910827
TTEXT:

           Federal Mine Safety and Health Review Commission
                  Office of Administrative Law Judges
                         2 Skyline, 10th Floor
                          5203 Leesburg Pike
                     Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 91-60
PETITIONER A.C. No. 44-00649-03535
v.
Coronet Jewell Prep. Plant 2
JEWELL SMOKELESS COAL CORP.,
RESPONDENT

                                 DECISION

Appearances: Glenn M. Loos, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia;
Joseph W. Bowman, Esq., Street, Street, Street,
Scott & Bowman, Grundy, Virginia.

Before: Judge Weisberger

                       I. STATEMENT OF THE CASE

 This case is before me based upon a petition for civil

penalty filed by the Secretary (Petitioner) seeking a total
penalty of $59 for violations by Respondent of two mandatory
standards set forth at 30 C.F.R. 77.1301(c)(6) and 30 C.F.R.
77.1301(c)(9). The Operator, (Respondent) filed an answer in
which, in essence, it denied that the Mine Safety and Health
Administration has jurisdiction over the facility in which the
alleged violations occurred. In a telephone conference call
initiated by the undersigned on April 25, 1990, with counsel for
both parties, the parties agreed that they would each submit
motions for summary decision in order to resolve the issues
presented herein. The parties further indicated an intention to
engage in discovery, and the parties were consequently allowed
until July 31, 1991, to file their respective motions. On July
31, 1991, the parties each filed a motion for summary decision.

                           II. FINDINGS OF FACT

 In their respective motions, the parties set out enumerated

facts, which are adopted and are set forth below as follows:

 1. Jewell Smokeless Coal Corporation is the owner and

operator of the Jewell Equipment Shop which is the subject of
this proceeding.

   2. Federal Mine Safety and Health Inspector Leslie E.

Slowey was acting in his official capacity when he issued
Citations No. 3507039 and 3507040, except that Jewell Smokeless
does not admit that Inspector Slowey had jurisdiction to issue
the Citations at the equipment shop.

 3. True copies of Citations No. 3507039 and 3507040 were

served upon Jewell Smokeless Coal Corporation or its agent as
required by the Mine Act.

 4. The proposed penalty assessments for Citations No.

3507039 and 3507040 are reasonable in light of the conditions
stated in those citations, and such penalties will not adversely
affect Jewell Smokeless Coal Corporation's ability to continue in
business.

 5. Citations No. 3507039 and 3507040, are true and accurate

in their statement of the conditions existing at Jewell Smokeless
Coal Corporation's machine shop on September 5, 1990.

 6. The violations stated in Citations No. 3507039 and

3507040 were timely abated.

 7. Jewell Smokeless Coal Corporation operates an equipment

shop ("the shop") located north of Virginia State Route 638 and
Dismal River near Vansant, in Buchanan County, Virginia. The
exact location of the shop is indicated in green on the map
attached as "Exhibit B" to the parties' motions.

 8. The shop owns, and operates, maintains and repairs

through its employees the following types of equipment:
bulldozers, dump trucks, cement trucks, a hydoseeder, a vacuum
truck, spreader trucks, a road grader, tractor trucks, a rollback
trailer, a lowboy trailer, a gradeall, a crane, and loaders.

 9. The shop has twenty-five employees: two supervisors, four

carpenters, four mechanics and fifteen equipment operators.

 10. From its inventory of equipment and employees, the shop

supplies equipment and operators to Jewell Smokeless Corporation,
and to Dominion Coal Corporation and Jewell Coal & Coke Co.,
affiliated companies. All work done by the shop for Jewell
Smokeless Coal Corporation, Dominion Coal Corporation and Jewell
Coal & Coke Co., is charged by the shop to the company for which
the work is done.

 11. Jewell Smokeless Coal Corporation operates a coal tipple

which is located south of State Route 638 and on the north and
south sides of Dismal River near Vansant, in Buchanan County,
Virginia. The exact location of the coal tipple is indicated in
red on the map attached as "Exhibit B" to the Parties' motions.
Equipment and operators are supplied by the shop to Jewell
Smokeless Coal Corporation for such things as road construction
and maintenance and pond construction and maintenance. The shop

does not supply equipment or operators such as tipple equipment,
tipple operators, tipple mechanics, car droppers, etc. When the
equipment and operators of the shop are supplying services at the
tipple of Jewell Smokeless Coal Corporation, they are subject to
regulation by MSHA.

 12. Dominion Coal Corporation operates several underground

coal mines in Buchanan County, Virginia. The nearest mine to the
shop is located approximately one and one-half miles from the
shop, and the farthest mine is located approximately twenty miles
from the shop. Equipment and operators are supplied to Dominion
Coal Corporation for such things as mine construction and face-up
work, road construction and maintenance, mine reclamation work,
etc. The shop does not supply equipment or operators such as
continuous miners, continuous miner operators, roof bolters, roof
bolter operators, or other such underground mining equipment or
operators. When the equipment and operators of the shop are
supplying services at the mines of Dominion Coal Corporation,
they are subject to regulation by MSHA.

 13. Jewell Coal & Coke Company operates a coke manufacturing

facility which is located south of Virginia State Route 630 and
on the north and south sides of Dismal River near Vansant, in
Buchanan County, Virginia. The exact location of the coke
manufacturing facility is indicated in black on the map attached
as "Exhibit B" to the Parties' motions. Equipment and operators
are supplied by the shop to Jewell Coal & Coke Company for such
things as construction, road construction and maintenance,
clean-up activities, etc. When the equipment and operators of the
shop are supplying services at the coke ovens of Jewell Coal &
Coke Company, they are subject to regulation by OSHA.

 14. The actual site of the shop consists of a road leading

from State Route 638, a parking area for the shop employees and
for equipment not in use or awaiting maintenance or repair, and
two buildings, one of which contains an office and three repair
bays, where maintenance and repair of the shop's equipment is
performed. Two of the bays have grease pits. The other building
has bays in which to park equipment, and is used primarily for
the purpose of sheltering equipment during the winter and
providing access to electrical outlets into which diesel engine
heaters can be connected during cold weather. The shop through
its employees performs maintenance and repair services on the
shop equipment identified above at the shop site. No maintenance
or repairs are done at the shop on mine equipment of Dominion
Coal Corporation or tipple equipment of Jewell Smokeless Coal
Corporation such as that previously identified.

 15. The shop has separate supervision from any of the

aforesaid mines, tipple or coke manufacturing facility, and has
no MSHA mine identification number.

  16. The only issue presented in this action is whether the

equipment shop at which Inspector Slowey issued Citation No.
3507039 and 3507040 comes within the jurisdiction of the Mine
Safety and Health Administration.

                               III. DISCUSSION

 The facts indicate that at the shop maintenance and repair

services are performed on the following types of equipment:
bulldozer, dump trucks, cement trucks, a hydroseeder, a vacuum
truck, spreader trucks, a road grader, tractor trucks, a rollback
trailer, a lowboy trailer, a gradeall, a crane, and loaders.
These items of equipment are used at a coke manufacturing
facility, which, when at that site, are subject to regulation by
the Occupational Safety and Health Administration. In addition,
they are used at a tipple and several mines in Buchanan County,
Virginia, for road and pond construction and maintenance and mine
construction and face-up work.

 In analyzing whether the shop is within the jurisdiction of

the Mine Safety and Health Administration, I take cognizance of
the definition of a coal mine set forth in section 3(h)(i) of the
Federal Mine Safety and Health Act of 1977, (The Act) in relevant
part, as "lands . . . structures, facilities, equipment,
machines, tools, or other property . . . on the surface . . .
used in, or to be used in . . . the work of extracting (coal)
from (its) natural deposits . . . or the work of preparing." The
Commission has indicated that although this definition is not
without bounds it ". . . is expansive and is to be interpreted
broadly." (U.S. Steel Mining Co., Inc., 10 FMSHRC 146, at 149
(1988).) In this connection, the legislative history of the Act
explicitly sets forth the Congressional intent with regard to a
broad construction to be accorded the Act's definition of a coal
mine. The Senate report on the bill that became the Act states as
follows:

         [T]he 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 possible interpretation, and it is the intent
         of this Committee 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., 2nd Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 602.

    The various equipment in question, being used to maintain

and construct roads at the site of mines, and in mine
construction, are thus used in activities that perform an
integral part of the work of extracting coal, given a broad
construction to that term, as was done implicitly by the
Commission in U.S. Steel, supra.) (Footnote 1). Accordingly,
the shop wherein such equipment is parked, maintained, and repaired,
is considered "within the scope . . . structures, facilities, . . .
on the surface . . . used in, or to be used in . . . the work of
extracting [coal] . . . or the work of preparing coal." (See,
U.S. Steel, supra.

 In light of this conclusion Respondent's motion for summary

decision is DENIED and the motion for summary decision by
Petitioner is GRANTED. Inasmuch as the only issue presented for
resolution was whether the citations 3507039 and 3507040 are
within the jurisdiction of the Mine Safety and Health
Administration, and inasmuch as that issue has been answered in
the affirmative, judgment in this case shall be entered in favor
of the Petitioner based upon the allegations contained in the
petition for assessment of civil penalty.

                                 ORDER

 It is ordered that Respondent's pay $59 as a civil penalty

for the violations set forth in the petition for assessment of
civil penalty.

                                         Avram Weisberger
                                         Administrative Law Judge

Footnotes start here:-

 1. In U.S. Steel, supra, the Commission, was presented with

the issue of whether a facility for the repair and maintenance of
electrical and mechanical coal mining equipment was subject to
the provisions of a mandatory standard requiring examinations of
surface coal mines. In deciding this issue, the Commission took
cognizance of the parties' stipulations that the facility in
questions exists and functions to repair and maintain equipment
used in, or to be used in, coal mines, that the facility has a
separate mine identification number, and that it has a history of
regulation and citation by MSHA. Based on these stipulations the
Commission held that the facility "consists of land . . .
structures, facilities, equipment, machines, tools, or other
property . . . on the surface . . . used in, or to be used in . .
. the work of extracting [coal] . . . or the work of preparing
coal and, therefore is a surface coal mine subject to the
examination requirements of section 77.1713(a)" (U.S. Steel,
supra at 149).

      In the instant case, the shop does not have an MSHA

identification number, and there is nothing in the record to
indicate that it has a history of regulation and citation by
MSHA. The absence of these factors herein do not distinguish the
instant case from U.S. Steel, supra. Inasmuch as, according to
the Act, supra, a facility, is a coal mine if it is used in the
work of extracting or preparing coal, the critical element is the
function of a facility, and not how it has been identified by
MSHA or the Operator. In this connection, it is significant that
in the instant case as in U.S. Steel, supra, the shop at issue
repairs equipment used at a coal mine.