1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-4457

_____________

SHAMOKIN FILLER COMPANY, INC.,

Petitioner

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW 

COMMISSION; SECRETARY OF LABOR, MINE 

SAFETY AND HEALTH ADMINISTRATION (MSHA)

Respondents

_____________

On Petition for Review from the Federal Mine Safety and 

Health Review Commission

(Docket Nos. PENN 2009-775, -825, PENN 2010-63, -191,

-275, -291, -381, -465, -515, -745, PENN 2011-16, -104, -

129, -189)

_____________

Argued: December 10, 2013
2

Before: MCKEE, Chief Judge, FUENTES and CHAGARES, 

Circuit Judges.

(Opinion Filed: July 11, 2014)

Adele L. Abrams, Esq. [ARGUED]

Law Office of Adele L. Abrams, P.C.

4740 Corridor Place, Suite D

Beltsville, MD 20705

Attorney for Petitioner Shamokin Filler Company Inc.

Sara L. Johnson, Esq. [ARGUED]

U.S. Department of Labor

1100 Wilson Blvd., 22nd Fl. 

Arlington, VA 22209 

Attorney for Respondent-Appellee Secretary of Labor

_____________

OPINION OF THE COURT

_____________

FUENTES, Circuit Judge: 

Petitioner Shamokin Filler Company, Inc., operates a 

coal preparation facility in Shamokin, Pennsylvania that has 

been regulated by the Federal Mine Safety and Health 

Administration (“MSHA”) since 1977. After a change in 

ownership in 2009, the new owners challenged MSHA’s 

jurisdiction over the Shamokin facility, contending that the 
3

Occupational Safety and Health Administration (“OSHA”), 

not MSHA, should oversee it.

1

The Secretary of Labor, along 

with an Administrative Law Judge for the Federal Mine 

Safety and Health Review Commission, and the same 

Commission’s appellate body, all disagreed and concluded 

that because Shamokin was engaged in the “work of 

preparing the coal,” as defined in the Federal Mine Safety and

Health Act of 1977 (the “Mine Act”), 30 U.S.C. § 802(i), 

MSHA’s assertion of jurisdiction was proper. Shamokin 

petitions for review of the Commission’s final order, arguing 

that its plant does not engage in the “work of preparing the 

coal” because it makes its 100% coal products out of already 

processed coal. 

Shamokin’s interpretation of the statute lacks any basis 

in the text of the Mine Act, and we decline to adopt it. 

Shamokin also requests reversal of an evidentiary 

determination excluding evidence of MSHA’s 

non-jurisdiction over other plants. We find this evidentiary 

challenge to be without merit. For the reasons that follow, we

will deny the petition for review. 

I. BACKGROUND2

 

1

Presumably the new owners desired to avoid the more 

stringent requirements imposed by MSHA regulations and the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. As discussed in more detail below, MSHA, rather than 

OSHA, has much stricter oversight requirements including 

regarding respirable coal dust standards. 

2 We have jurisdiction over this appeal under 30 

U.S.C. § 816(a). The Administrative Law Judge’s (“ALJ”) 
4

A. Legal and Administrative Framework

The U.S. Department of Labor oversees, in relevant 

part, two agencies devoted to workplace safety and worker 

health: OSHA and MSHA. OSHA administers the 

Occupational Health and Safety Act of 1970 (the “OSH Act”)

and regulates workplace safety and worker health unless 

Congress has conferred jurisdiction on another agency in an 

industry-specific statute. See 29 U.S.C. § 653(b)(1). In this 

case, OSHA and the OSH Act govern Shamokin’s plant 

unless MSHA, administering the Mine Act, governs instead. 

The difference in jurisdiction results in a difference in 

oversight. MSHA’s regulatory framework is more specific 

and extensive than OSHA’s in regulating safety and health 

hazards associated with the handling of coal, particularly with 

 

final decision and order, entered on October 18, 2012, was 

not directed for review by the Mine Commission and by law 

became a final order of the Mine Commission on November 

26, 2012. We review the Mine Commission’s legal 

conclusions de novo. See Reich v. D.M. Sabia Co., 90 F.3d 

854, 860 (3d Cir. 1996). We review evidentiary rulings for 

abuse of discretion. See Mach Min., LLC v. Sec’y of Labor, 

Mine Safety & Health Admin., 728 F.3d 643, 659 (7th Cir. 

2013); cf. Gunderson v. U.S. Dep’t of Labor, 601 F.3d 1013, 

1021 (10th Cir. 2010) (reviewing evidentiary decisions of an 

ALJ of the Department of Labor’s Benefits Review Board 

under an abuse of discretion standard); R & B Transp., LLC v. 

U.S. Dep’t of Labor, Admin. Review Bd., 618 F.3d 37, 44 (1st 

Cir. 2010) (same as to decisions of an ALJ of the Department 

of Labor’s Administrative Review Board). 
5

regard to workers’ exposure to respirable coal dust. Compare 

30 C.F.R. Part 71 with 29 C.F.R. Part 1910, Subpart Z. 

Because of the dangers inherent in mining, Congress also 

gave the Secretary more rigorous enforcement mechanisms 

under the Mine Act than under the OSH Act. For example, 

the Mine Act, unlike the OSH Act, requires two inspections 

per year for surface mines, permits inspections to be 

conducted without a warrant, and in specified circumstances 

authorizes inspectors to issue orders requiring withdrawal of 

miners from the mine. See 30 U.S.C. §§ 813(a), 814(d), 

814(e), 817(a); Donovan v. Dewey, 452 U.S. 594, 606 (1981); 

RNS Servs., Inc. v. Sec'y of Labor, Mine Safety & Health 

Admin. (MSHA), 115 F.3d 182, 187 (3d Cir. 1997).

In order to determine whether MSHA and the Mine 

Act govern, we must decide whether the facility to be 

regulated is a “coal or other mine, the products of which enter 

commerce, or the operations or products of which affect 

commerce.” 30 U.S.C. § 803; see RNS Servs., Inc., 115 F.3d 

at 183. In relevant part, a “coal or other mine” under the Mine 

Act includes “lands, . . . facilities, equipment, machines, 

tools, or other property, . . . used in, or to be used in, . . . the 

work of preparing coal . . . and includes custom coal 

preparation facilities.” 30 U.S.C. § 802(h)(1)-(h)(2). We have

found this provision to be “so expansively worded as to 

indicate an intention on the part of Congress to authorize the 

Secretary to assert jurisdiction over any lands integral to the 

process of preparing coal for its ultimate consumer.” RNS 

Servs., Inc., 115 F.3d at 186 (emphasis added). The Mine Act 

defines “the work of preparing the coal” as “the breaking, 

crushing, sizing, cleaning, washing, drying, mixing, storing, 

and loading of bituminous coal, lignite, or anthracite, and 
6

such other work of preparing such coal as is usually done by 

the operator of the coal mine.” 30 U.S.C. § 802(i). 

We employ a “functional analysis” in assessing 

whether MSHA has jurisdiction, under which we give the 

“broadest possible scope to [M]ine Act coverage.” Pa. Elec. 

Co. v. Fed. Mine Safety & Health Review Comm’n

(“Penelec”), 969 F.2d 1501, 1503 (3d Cir. 1992) (quotation 

marks omitted). What matters most is how the company uses 

the coal:

Turning to the case law, in [Penelec], we held 

that “the delivery of raw coal to a coal 

processing facility is an activity within the Mine 

Act, but not the delivery of completely 

processed coal to the ultimate consumer.” 969 

F.2d 1501 [at 1504] (citing Stroh v. Director, 

Office of Workers’ Comp. Progs., 810 F.2d 61, 

64 (3d Cir. 1987)). See also Hanna v. Director, 

Office of Workers’ Comp. Progs., 860 F.2d 88, 

92-93 (3d Cir.1988). In Stroh, we found that 

“shovel[ing coal] into [a] truck, and haul[ing] it 

to independently owned coal processing plants” 

was integral to the work of preparing the coal. 

[810 F.2d] at 62. We further noted that the 

loaded coal’s subsequent transportation over 

public roads did not alter its status as an activity 

that is part of the work of preparing the coal. Id.

at 65.

Penelec applied a functional analysis, wherein 

the propriety of Mine Act jurisdiction is 

determined by the nature of the functions that 
7

occur at a site. That analysis has its roots in 

Wisor v. Director, Office of Workers’ Comp. 

Progs., 748 F.2d 176, 178 (3d Cir.1984), was 

applied in Stroh, 810 F.2d at 64, and has been 

adopted by the Fourth Circuit. See United 

Energy Servs., Inc. v. Federal Mine Safety & 

Health Admin., 35 F.3d 971, 975 (4th Cir. 

1994).

RNS Servs. Inc., 115 F.3d at 184. 

B. Procedural History

Between 1977 and 2009, MSHA treated Shamokin’s 

facility, operated by another owner, as a mine and inspected it 

for compliance with the Mine Act. In 2009, Shamokin 

changed ownership. The current owners (children of the 

former owners) wrote to the Secretary of Labor requesting 

that MSHA relinquish jurisdiction over the plant. The 

Secretary refused. Between 2009 and 2011, the Secretary, 

through MSHA, issued a number of citations against

Shamokin for violations of the Mine Act that MSHA 

inspectors found at Shamokin’s plant. Among the most 

serious of these citations were numerous violations of 

MSHA’s respirable dust standards. 

Shamokin contested the citations in front of an ALJ of 

the Federal Mine Safety and Health Review Commission.

Shamokin stipulated that it was liable for the violations and 

associated penalties to the extent that MSHA appropriately 

exercised jurisdiction over the plant. However, Shamokin 

objected to MSHA’s jurisdiction, on the grounds that it was 

not operating a “coal or other mine,” but instead was mainly 
8

engaged in the manufacture of products made out of coal 

rather than the preparation of anthracite coal. After an ALJ 

found that MSHA had jurisdiction, Shamokin appealed to the 

Mine Commission’s appellate body, which affirmed the ALJ.

C. Factual Findings of the Mine Commission

The facts as found by the Mine Commission are 

conclusive as Shamokin mounts no argument to show that 

they are not supported by substantial evidence. See 30 

U.S.C. § 816(a). The ALJ specifically found that, “the Carbon 

Plant is a custom coal preparation facility that stores, sizes, 

dries and loads coal to make it suitable for subsequent 

industrial use.” App. at A25. The ALJ also determined 

Shamokin’s key witness “offered contradictory, inconsistent, 

and suspect testimony.” Id. Specifically, there was “an 

attempt by the owners to obstruct the amount of coal used by 

the Carbon Plant, the percentage of coal versus non-mined 

materials, and the actual nature and extent of its coal versus 

non-coal operations.” Id. The ALJ determined that 

Shamokin’s assertion that it was principally engaged in 

manufacturing coal products, rather than coal processing, was 

belied by the evidence: “over 6,000 tons of [Shamokin’s] 

product, ‘carb-o-cite,’ made of 100% anthracite coal, was 

sold in 2009, as compared to only a few tons of multiple 

products containing no coal or coal mixtures. . . . This Court 

noted that neither inspector . . . observed any mixing of coal 

with non-coal materials at the plant.” Id. at A26. The ALJ 

concluded that “[Shamokin] is storing large amounts of coal, 

screening it to remove impurities and ensure size quality, 

drying it, and loading it in bags appropriately sized to be sold 

in the stream of commerce.” Id. at A28. The Mine 
9

Commission’s appellate body affirmed the ALJ’s decision as 

supported by “substantial evidence.” Id. at A36.

D. Conclusions of Law of the Mine Commission

The ALJ determined that “[t]he fact that [Shamokin] is 

customizing the formulas to meet industry and customer 

specifications only strengthens the Secretary’s position that 

[Shamokin] is operating a custom coal preparation facility 

and should, therefore, continue to be covered under MSHA’s 

jurisdiction.” Id. at A28. The Mine Commission affirmed, 

concluding that that the ALJ “was correct in concluding that 

the Carbon Plant performs the ‘work of preparing the coal,’ 

and thus is a ‘mine’ . . . subject to jurisdiction under the Mine 

Act.” Id. at A38. 

E. Evidentiary Ruling

The ALJ granted the Secretary’s motion seeking to

exclude evidence gathered by a 2004 MSHA fact-finding 

committee that had reviewed operations at seven facilities 

that Shamokin claimed were similar to its carbon plant. The 

ALJ first found that the evidence of MSHA’s oversight over 

other facilities was irrelevant because MSHA jurisdiction 

should be determined on a “case-by-case basis.” Id. at A2. It 

also found that, even if it were relevant, it should be excluded 

because “its probative value [was] . . . substantially 

outweighed by a danger of unfair prejudice, confusion of the 

issues, or . . . a waste of time or needless presentation of 

cumulative evidence.” Id. (relying on 29 C.F.R. § 2700.63(a),

which provides, “relevant evidence, including hearsay 

evidence, that is not unduly repetitious or cumulative is 

admissible,” and Federal Rule of Evidence 403). The ALJ 
10

reasoned that the balance in this case weighed in favor of 

exclusion given the case-by-case nature of the inquiry over 

whether MSHA jurisdiction is proper; the fact that it would 

be “cumbersome and impractical” to review “whether and 

why MSHA has exercised or should exercise jurisdiction over 

similar ‘bagging facilities’”; and that Shamokin would be not 

be prejudiced given the otherwise wide breadth of the 

evidentiary hearing. App. at A2-3. 

The ALJ revisited the evidentiary determination after 

the hearing itself, adding that there was no appellate case law 

on the question of whether “a comparative facility analysis 

approach” was proper. Id. at A9. Accordingly, the ALJ found 

that the approach Shamokin requested would detract from 

analysis of the particular facility at issue, sending the tribunal 

on a “jurisdictional safari, searching out all similar facilities 

in the country and comparing alike and non-alike activities, 

structures, operations, and products with that of the subject 

Carbon Plant. [] The collateral inquiries would be endless.” 

Id. at A10. 

The Mine Commission’s appellate body affirmed 

under an abuse of discretion standard, adding that 

Administrative Procedure Act § 556(d) imposes an obligation 

on the agency to have a policy to exclude “irrelevant, 

immaterial, or unduly repetitious evidence.” Id. at A39 (citing 

5 U.S.C. § 556(d)). The Mine Commission agreed that the 

evidence was not relevant because “[i]t is unlikely that any 

two facilities would be identical and warrant the same 

conclusion on jurisdiction,” and jurisdiction is “governed by

the statute, rather than by which of two conflicting 

interpretations by the Solicitor is correct.” App. at A39 

(internal quotation marks and citations omitted). Moreover, 
11

given that the evidence was of “limited probative value,” its 

introduction would have “unduly delayed the trial”—

Shamokin would have had to present “a significant number of 

additional witnesses” to “demonstrate the similarities between 

those facilities and its Carbon Plant.” Id. at A40. Finally, the 

appellate body noted that MSHA has asserted jurisdiction 

over Shamokin’s plant for decades, and that there has been no 

change in Shamokin’s operations. Id. 

II. DISCUSSION

A. 30 U.S.C. § 802: “work of preparing the coal”

Under our functional analysis, Shomakin is engaged in 

“the work of preparing the coal.” In RNS, the loading of coal 

for transport to another facility for further processing was 

considered “the work of preparing the coal,” because the 

“storage and loading of the coal is a critical step in the

processing of minerals extracted from the earth in preparation 

for their receipt by an end-user, and the Mine Act was 

intended to reach all such activities.” 115 F.3d at 185.

Shamokin does more than the facility in RNS: Shamokin 

admits that it stores, dries, screens, and bags coal. Under RNS, 

it is subject to MSHA jurisdiction. 

Shamokin nonetheless argues that it is not engaged in 

the work of preparing coal under the Mine Act definition

because it purchases coal that has already been processed. 

Shamokin supports its argument in four ways worth 

addressing: first, through statutory interpretation, second,

through relying on a definition of “coal preparation” from the 

now defunct U.S. Bureau of Mines, third, by arguing that the 

statute would lack meaningful boundaries without its 
12

proposed limitation, and finally, by relying on case law from 

various Courts of Appeals. Each argument will be addressed 

in turn.

Shamokin first makes a statutory argument. It 

contends that the last phrase in § 802(i), “and such other work 

of preparing such coal as is usually done by the operator of 

the coal mine,” modifies the earlier items in the list such that 

only functions that are usually done by the “operator of a coal 

mine” are regulated under the Mine Act. Petitioner’s Br. at 13

(emphasis added). In turn, only processing of “raw,” “run-ofmill” or unprepared coal, not the processing of coal that is 

already in “usable or marketable condition,” would usually be 

done by an operator of a coal mine. Id. The Secretary 

responds that the Mine Act contains no such limitation. 

We believe the Secretary is correct. The words “raw” 

or “unprepared” or “run-of-mill” never appear anywhere in 

the Mine Act definitions, a strong indication that Congress 

never restricted Mine Act coverage to those facilities that 

begin with coal in these states. Additionally, in RNS, we 

addressed the last phrase in § 802(i), and rejected the 

predicate of the argument that Shamokin raises here—

whether the activities at the plant are usually done by the 

operator of a hypothetical coal mine is not relevant in the 

analysis. In RNS, we placed emphasis on the definite article in 

the phrase “as is usually done by the operator of the coal 

mine.” 115 F.3d at 185 (emphasis added) (internal quotation 

marks omitted). We decided that if 802(i) had an indefinite 

article in place of the definite article, reading instead “the 

operator of a coal mine,” this clause could imply that “one 

might have to compare the activities at the alleged coal mine 

with those of a typical, paradigmatic, ‘usual’ coal mine.” RNS 
13

Servs. Inc., 115 F.3d at 185. However, the sentence as 

written differs. It “simply explains that the work of the coal 

mine is the work that is usually done in that particular place. 

The fact that [a] [s]ite is perhaps an unconventional coal mine 

does not defeat its status as a coal mine for the purposes of 

[§] 802.” Id. Shamokin’s statutory argument is therefore 

without merit. 

Shamokin’s second argument borrows from the 

Dictionary of Mining, Mineral and Related Terms published 

by the U.S. Bureau of Mines, a now defunct federal agency 

that conducted scientific research on the extraction, 

processing, use, and conservation of mineral resources until 

its closure in 1995. The Bureau had defined “coal 

preparation” as “[t]he various physical and mechanical 

processes in which raw coal is dedusted, graded, and treated 

by dry methods (rarely) or water methods, using dense-media 

separation (sink-float), jigs, tables, and flotation. The 

objective is the removal of free dirt, sulfur, and other 

undesirable constituents.” 3This definition is at least eighteen 

years old and is from an agency that was tasked not with 

safety but rather research. In any event, the words “raw coal” 

do not appear in the Mine Act, and Shamokin has failed to 

show why this definition should take precedence over the one 

in the Mine Act. 

Third, Shamokin asserts that unless the work of 

preparing coal ends “when the raw, run-of-mill extracted 

material has been processed into a usable condition,” the list 

 

3

Available at

http://webharvest.gov/peth04/20041015011634/imcg.wr.usgs.

gov/dmmrt/ (last accessed June 30, 2014) (emphasis added).
14

of activities enumerated in § 802(i) would be unworkably 

broad. Petitioner’s Br. at 14. Such an interpretation, the 

argument runs, could include “anyone who handles coal, no 

matter how far down the stream of commerce,” subsuming 

non-mining activities such as operations “that use processed 

coal for heating, powering equipment, as a feedstock in 

producing other products, or which merely transport the 

processed coal.” Id. at 14-15. But this Court’s functional 

approach has already managed to weed out such activities.

For example, without Shamokin’s proposed limitation, we 

determined that delivery of raw coal to a processing facility, 

but not delivery of processed coal to the consumer, counts as 

the work of preparing the coal. See RNS Servs., Inc., 115 F.3d 

at 184. In RNS, the loading of coal for transport to another 

facility for further processing was considered “the work of 

preparing the coal” because the “storage and loading of the 

coal is a critical step in the processing of minerals extracted 

from the earth in preparation for their receipt by an end-user, 

and the Mine Act was intended to reach all such activities.” 

Id. at 185. Thus, through the rubric of the functional test, 

activities that are too far attenuated from the actual processing 

of coal, and which are not “critical” or “integral,” see id. at 

185-86, in preparation of receipt by the end user, will not be 

subsumed under the Mine Act definition and in fact have not 

been. 

Contrary to Shamokin’s assertion, our opinion in 

Dowd v. Director, Office of Workers’ Compensation 

Programs, 846 F.2d 193, 194-195 (3d Cir. 1988) does not

counsel in favor of another result.

4

In Dowd, we determined 

 

4 Dowd is of limited import here because it was decided under 

Title IV of the Mine Act, or the Black Lung Benefits Act of 
15

that a worker was involved in the preparation of coal at a 

“custom coal preparation facility” because his employer dried 

and crushed “unprepared anthracite [coal].” Id. at 195. 

Shamokin asks us to extrapolate from this that the work of 

further preparing prepared coal would thus not be considered 

coal preparation. In so doing, it requests that we convert a 

sufficient condition into a necessary one, but nothing about 

the opinion implies that the facilities have to begin with 

unprepared anthracite to be “custom coal preparation 

facilities.”

Finally, Shamokin attempts to demonstrate that courts 

routinely cut off Mine Act jurisdiction at the point where raw 

coal becomes usable. Having reviewed the cases cited, we 

agree with the Secretary that none of these cases stands for 

the proposition that the Mine Act does not cover the further 

processing of already processed coal.

5

 

1972 (“BLBA”), 30 U.S.C. § 901 et seq., for which Congress 

has specified that a different definition of coal mine applies.

Compare 30 U.S.C. § 802(h)(2) (defining “coal mine” for 

purposes, among others, of subchapter IV of chapter 22, 

which includes the BLBA), with 30 U.S.C. § 802(h)(1) 

(defining “coal or other mine” for the rest of chapter 22, 

which includes the Mine Act).

5

See Petitioner’s Br. at 16-18 (citing Southard v. Dir., 

OWCP, 732 F.2d 66, 68-70 (6th Cir. 1984) (finding under the 

BLBA that a worker who stored, loaded, and unloaded coal 

for a coal retailer was not engaged in the “work of preparing 

the coal” because the coal retailers he worked for were 

“purchasers of prepared coal”); Eplion v. Dir., OWCP, 794 

F.2d 935, 937 (4th Cir. 1986) (finding under the BLBA that a 
16

It is also worth noting that Shamokin’s most serious 

mine safety citations involved violations of MSHA’s 

respirable dust standards. Given that the activities at 

Shamokin’s plant trigger the types of safety concerns that the 

Mine Act was intended to remedy, it would defy Congress’s 

intent to allow Shamokin to escape Mine Act jurisdiction 

based on a formality. See RNS Servs., Inc., 115 F.3d at 187

(noting that the Mine Commission had “legitimate concerns 

about worker safety and health at the Site,” which included 

“[t]rue potential hazards” such as “circulation of dust”).

Thus, we decline Shamokin’s invitation to impose 

additional limitations not in the statute and find that MSHA’s 

assertion of jurisdiction over the plant was proper. 

 

worker who transported and distributed processed coal was 

not engaged in the “work of preparing the coal” because the 

coal was “already processed and prepared for market before 

[the worker] had any contact with it”); Collins v. Dir., 

OWCP, 795 F.2d 368, 372 (4th Cir. 1986) (finding under the 

BLBA that a truck driver who hauled slate (coal refuse) from 

the “tipple” at the end of processing was not engaged in coal 

mine employment)). In fact, we have before declined to 

impose a bright line rule that preparation ends “at the point 

when the coal is placed into the processing tipple because we

are not convinced that each step essential to the preparation of 

the coal for entry into the stream of commerce is completed at 

that point. Thus, [the employer’s] participation in the removal 

of the coal from the tipple was a step, if only the very last 

step, in the preparation of the coal.” Hanna v. Dir., Office of 

Workers’ Comp. Programs, U.S. Dep’t of Labor, 860 F.2d 88, 

93 (3d Cir. 1988) (looking with skepticism on Collins, 795 

F.2d at 372, relied on by Shamokin).
17

B. Evidentiary Appeal

Shamokin also challenges the ALJ’s decision to 

exclude evidence of MSHA’s non-assertion of jurisdiction 

over plants that Shamokin claims are its competitors. 

Shamokin contends that the evidence would have showed an 

inconsistent position regarding MSHA’s exercise of

jurisdiction over carbon products plants such as Shamokin’s, 

which could call into question the propriety of the Secretary’s 

assertion of jurisdiction here. 

Shamokin submits that a number of memoranda are 

relevant to the question of whether MSHA has consistently 

interpreted the statute to allow for jurisdiction over the further 

processing of non-raw coal. In its brief, Shamokin discusses 

only the operations of the Keystone Filler & Manufacturing 

plant, highlighting a June 22, 2004 memorandum as 

representative, so that is the plant and memorandum we will 

address. According to this memorandum, written by Counsel 

for Standards, Mine Safety and Health, to a District Manager 

of MSHA, Keystone’s facility was not engaged in the “work 

of preparing the coal” because,

once the coal arrives at this facility, it is already 

fully prepared and ready to be used by Keystone 

as a chemical compound ingredient in the 

manufacture of saleable products for the rubber, 

plastics, and steel products industries. . . . Other 

ingredients are added to it such as coke, 

petroleum laced coke and graphite. Any 

oversized pieces are crushed at Keystone, but 

this crushing is incidental to the manufacturing 

process. As a consumer of fully processed coal 
18

sold in the open market, Keystone’s work 

constitutes manufacturing rather than mining, 

and as such, not subject to MSHA jurisdiction. . 

. . [P]reparation ends when the coal is ready for 

use. 

App. at A184. 

We agree that the consistency of an agency’s 

application of a statute might be relevant. See, e.g., Westar 

Energy, Inc. v. Fed. Energy Regulatory Comm’n, 473 F.3d 

1239, 1243 (D.C. Cir. 2007) (“The Order under review is 

arbitrary and capricious in that it provides no basis in fact or 

in logic for the Commission’s refusal to treat Westar as it had 

treated KCPL.”). However, this memorandum is not relevant.

Keystone was engaged in manufacturing, not coal processing.

Shamokin argued unsuccessfully to the Mine Commission

that it, like Keystone, was mainly engaged in the manufacture 

of carbon-based products for the steel, rubber, and plastics 

industries. The Mine Commission determined this assertion 

was factually without merit, as inspectors found no mixing of 

coal with non-coal materials at the plant, and the records 

supplied by Shamokin confirmed that it sold only a few tons 

of products containing no coal or coal mixtures. As such, 

Shamokin’s comparison to Keystone is not apt, as Shamokin 

was mainly engaged in coal processing, not manufacturing of 

other products using coal. 

Furthermore, as the Mine Commission pointed out, 

better evidence on the consistency of MSHA’s jurisdictional 

decisions is the fact that the Secretary through MSHA has 

asserted jurisdiction over Shamokin from 1977 to 2009 

without a change in its operations when the new owners 
19

assumed the helm. Indeed, this demonstrates that the 

Secretary has consistently interpreted the statute. We also 

agree with the ALJ’s assessment that the introduction of this 

evidence could have opened up a stream of requests for 

comparisons to facilities all around the country, causing an 

unnecessary delay in the proceedings to address collateral 

matters. 

Given the limited probative value of the evidence, and 

the potential it had to unnecessarily delay the hearing, we 

affirm the Mine Commission’s decision to exclude the 

evidence of MSHA’s non-assertion of jurisdiction over other 

facilities. We find that the agency’s decision was not an abuse 

of discretion. Cf. Bhaya v. Westinghouse Elec. Corp., 922 

F.2d 184, 187 (3d Cir. 1990); see also United States v. Long, 

574 F.2d 761, 767 (3d Cir. 1978) (“If judicial self-restraint is 

ever desirable, it is when a Rule 403 analysis of a trial court is 

reviewed by an appellate tribunal.”).

III. CONCLUSION

For the foregoing reasons, we will deny the Petition 

for Review of the Mine Commission’s final order. The 

Secretary’s exercise of jurisdiction over Shamokin through 

MSHA was proper. Furthermore, the ALJ did not commit an 

abuse of discretion by failing to allow into evidence internal 

memoranda between MSHA employees regarding the 

non-assertion of jurisdiction over other facilities.