RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0031p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

M AXXIM R EBUILD C OMPANY , LLC, Petitioner ,

v

.

F EDERAL M INE S AFETY AND H EALTH R EVIEW C OMMISSION ; S ECRETARY OF L ABOR , M INE S AFETY AND H EALTH A DMINISTRATION , Respondents

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 16-3530

On Petition for Review from the Federal Mine Safety and Health Review Commission. Nos. KENT 203-566; KENT 2013-989. Argued: February 1, 2017
Decided and Filed: February 13, 2017
Before: BATCHELDER, SUTTON , and KETHLEDGE, Circuit Judges.

_________________ COUNSEL

ARGUED: Ralph Henry Moore, II, JACKSON KE LLY PLLC, Pittsburgh, Pennsylvania, for Petitioner. Cheryl C. Blair-Kijewski, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Responde nt Secretary of Labor. ON BRIEF: Ralph Henry Moore, II, Patrick W. Dennison, JACKSON KELLY PLLC, Pittsburgh, Pennsylvania, for Petitioner. Cheryl C. Blair-Kijewski, W. Christia n Schumann, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondent S ecretary of Labor. Mark E. Heath, SPILMAN THOMAS & BATTLE, PLLC, Charleston, We st Virginia, for Amicus Curiae. 

### >No. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 2

_________________ OPINION

_________________ SUTTON, Circuit Judge. At issue is whet her Maxxim Rebuild Comp any, which operates a shop that makes and repairs mining equipment, is a “coal or other mine ” subject to regulation by the Federal Mine Safety and Health Review Administration. 30 U.S.C. § 802(h). The Maxxim facility does not extract coal or any othe r mineral, and it does not prepare coal or any other mineral for use. It builds and repairs mining equipment at a site that is neither adjacent to nor part of a working mine. Because the definiti on of “coal or other mine” refers to locations, equipment and other things in, above, beneath, or appurtenant to active mines, the Maxxim facility is not a mine subject to the Ad ministration’s jurisdiction. We reverse.

I.
Located in Sidney, Kentucky, the repair shop at issue makes and repairs mining equipment and machine parts. The shop consists of two work bays: one for welding, one for fabrication. Maxxim employs se ven workers at the Sidney shop. Roughly 75% of the work at the shop is for equipment that Alpha Natural Re sources (Maxxim’s parent company) uses to extract or prepare coal at several different mine s. The rest of the work is for other mining companies and for repair shops that might sell the equipment to mining or non-mining companies. Sidney Coal, anothe r Alpha subsidiary, ow ned the property and ha d an office in the upper floor of the Maxxim shop.
Maxxim operates six other shops and an equipment depot in Kentucky and West Virginia. Until this case, the Mine Safety and Health Administration had asserted jurisdiction over just one other Maxxim shop, an underground repair shop adjacent to a coal preparation plant. The Occupational Safety and Health Admi nistration, which oversees the safety of most workplaces in the country, regulates the other Maxxim shops. See 29 U.S.C. § 651. It previously supervised the Si dney shop employees when they did the same work in a smaller facility in Matewan, West Virginia.No. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 3

The Matewan facility, like the Sidney shop, used to be connected to an active coal mine. After the Matewan coal mine stopped extract ing coal, the Mine Safety and Health Administration stopped inspecting the facility. Maxxim thought the same would happen for the
sealed and abandoned mine near the Sidney shop.
The Mine Safety and Health Administrati on kept inspecting the Sidney shop anyway. Maxxim moved into the Sidney facility in January 2012, added the second work bay, and updated the facility. An Admini stration inspector visited the Sidney shop in January 2013, and
issued three citations. One stemmed from the absence of a written hazardous chemicals communication plan, which the Admi nistration requires for mines. See 30 C.F.R. §§ 47.31–.32. The second arose from a dirty bathroom. See id. § 71.402(a). The third was due to an accumulation of oil, fuel, and dust on a Caterpillar 988 loader. See id. § 77.1104. The inspector returned in June 2013, and issued two more citations in connecti on with a heater and a welder.
Maxxim challenged the Mine Safety and H ealth Administration’s power to issue the citations. An administrative law judge ruled that the Sidney shop was “a coal or other mine.”
See JA 16. So did the Commission, an independe nt agency responsible for reviewing the
Administration’s citations. See 30 U.S.C. § 823. Maxxim petitioned this Court for review of the
Commission’s decision. See id. § 816(a)(1).

II.
A few ground rules are in order. In reviewing decisions by the Federal Mine Safety and Health Review Commission, we defer to th e Commission’s fact findings if backed by
“substantial evidence.” Id. ; see Pendley v. Fed. Mine Safety & Health Rev. Comm’n , 601 F.3d 417, 422–23 (6th Cir. 2010). And we give Chevron deference to the Secretary of Labor’s interpretation of the Mine Act when, as ha ppened here, the Secretary agrees with the Commission’s interpretation of the Act. Id. at 423 & n.2. (The Secretary of Labor oversees the Mine Safety and Health Administ ration and the Occupational Safety and Health Administration.) As conventionally understood, Chevron asks two questions: Does the relevant statute answer the question at hand? If not, is the Secretary’s interpretation of the statute a reasonable one? Chevron, U.S.A., Inc. v. Nat. Res. Def. Counc., Inc. , 467 U.S. 837, 842–43 (1984). Even thoughNo. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 4

today’s dispute concerns the jurisd iction of the Commission, the same Chevron principles apply. See City of Arlington v. FCC , 133 S. Ct. 1863, 1868 (2013).
In the Secretary’s view, the Mine Safety and Health Administration has exclusive jurisdiction over any facility that makes or repairs “equipment that is used in coal extraction and coal preparation activities,” evena facility not a part of or adjacent to a working mine. Respondents’ Br. 20. In supporting this position, the Secretary asks us to focus on these words in one of the Mine Act’s jurisdictional provisions: that its authority extends to “facilities” and “equipment . . . used in, or to be used in . . . th e work of preparing coal or other minerals.” 30 U.S.C. § 802(h)(1).
But context and perspective are everything. In pulling back the lens, we see several indications that the power of the Mine Safety and Health Administration extends only to such facilities and equipment if they are in or adjacent to—in essence part of—a working mine.
Start with what § 802(h)(1) defines: a “coal or other mine.” The term is locational. And the location concerns mines. Equipment by its elf tells us nothing about where it is. And a facility by itself does not say anything about whether it is connected to a mine . As the title of the Act (the Federal Mine Safety and Health Act) and the title of the pertinent agency (the Mine Safety and Health Administration) suggest, the de finition of “coal or other mine” relates to a place—land and things in or connected to a mine.
Now pull back the lens to the full definition from which the Secretary extracts these words. Even if we italicize the chosen words, th ey take on a different hu e in context. Section 802(h)(1)(C) defines “coal or other mine” as “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 . . ., or used in, or to be used in . . . the work of preparing coal or other minerals.” The definition is broad, sure enough. It ’s as if the author went to a mine and wrote down everything he saw in, around, under, above, and next to the mine. Even then, the definition still extends only to everything that one would see in or around a working mine.No. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 5

It does not cover mining “equipment” or for th at matter mining “machines, tools, or other property” wherever they may be found or made.
Words, like people, “are known by their companions.” Gutierrez v. Ada , 528 U.S. 250, 255 (2000); see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts § 31 (2012). The definition of “coal or othe r mine” has two linking concepts. One relates to mine-related places: “lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, [and] facilities . . . , used in or to be used in . . . extracting . . .
minerals.” The other relates to mine-related things that serve a mine-related function in those places: “equipment, machines, tools, or other property . . . used in or to be used in” the same process: “extracting . . . minerals.” Both c oncepts are joined together by their connection to a working mine—places and things in or around th e mine. Just as these words do not cover “lands” disconnected from an active mine (even lands that might one day be purchased “to be used” as a mine), they do not cover equipment that is not part of a working mine (even equipment that might one day be sold to someone “to be used” in a mine). Whether it’s a place or functional thing, it must be connected to a working mine.
Now pull back the lens one frame further. Section 802(h)(1) provides three pertinent jurisdictional definitions, not just one—a perspe ctive that casts more light on § 802(h)(1)(C):
(h) (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 a ppurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machin es, tools, or othe r property including impoundments, retention dams, and taili ngs ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extr acting 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 minera ls, and includes custom coal preparation facilities. In making a determination of what constitutes mineral milling for purposes of this chapter, the Secretar y 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.No. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 6

Note that the other definitions in the Mine Act po rtray a mine as a place. One says that it is
“an area of land from which minerals are extracte d in nonliquid form or, if in liquid form, are extracted with workers underground.” § 802(h)(1)(A ). The other says “private ways and roads appurtenant to such area.” § 802( h)(1)(B). Location, location, locatio n: All three definitions are place connected and place driven.
Now pull back the lens to put the definition of “coal or other mine” in the context of adjacent definitions.
(d) “operator” means any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine; (e) “agent” means any person charged with responsibility for the operation of all or a part of a coal or other mine or the s upervision of the miners in a coal or other mine; . . . (g) “miner” means any individual work ing in a coal or other mine; (h) (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 a ppurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machin es, tools, or othe r 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 extr acting 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 minera ls, and includes custom coal preparation facilities. In making a determination of what constitutes mineral milling for purposes of this chapter, the Secretar y 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 subchapters II, II I, and IV, “coal mine” means an area of land and all structures, facilities, mach inery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any pe rson, 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 extracte d, and includes custom coal preparation facilities; (i) “work of preparing the coal” mean s the breaking, crushi ng, sizing, cleaning, washing, drying, mixing, storing, and load ing of bituminous coal, lignite, orNo. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 7

anthracite, and such other work of prepar ing such coal as is usually done by the operator of the coal mine.
§ 802.
Witness first the definitions of “operator” a nd “agent” and “miner.” All three are defined in relation to working mines. A nd this repair shop was not attach ed to or adjacent to a working mine. Then see the pertinent de finition of “coal mine” in § 802( h)(2), which applies to other federal programs such as the Black Lung Benefits Act. Here too the definition has a locational focus. It limits the agency’s authority to land and property connected to a mine, not to land, facilities, or equipment that might someday be used in connection with a coal mine. Taken together, each of these surroundi ng provisions teaches a lesson taught many times before. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme [] because the same terminology is used elsewhere in a context that makes its meaning clear or because only one of the permissi ble meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Inc. , 484 U.S. 365, 371 (1988) (quotation omitted).
Now pull back the lens to account for other provi sions in this title. Congress, it turns out, separately gave the Mine Safety and Health Administration authority to regulate equipment sold to mines, see 30 U.S.C. § 820(h), the most natural home for regulating mining equipment unconnected to a working mine. But the provision does not apply in this setting. And the agency indeed did not cite Maxxim for equipment vi olations. It cited the repair shop for alleged problems with bathrooms, welders, loaders, heaters, and safety plans. Not one of those things is equipment sold to Alpha.
What the agency complained about, it turns out further, is covered by a related agency, also under the umbrella of the Secretary of Labor: the Occupational Safety and Health
Administration. See 29 U.S.C. §§ 651, 653. The point of th e Occupational Safety and Health Administration is to regulate thes e kinds of safety and health matters, as its name suggests. Yet if we uphold the Secretary’s and Commission’s pos ition, that would give the Mine Safety and Health Administration exclusive jurisdiction over the entirety of the Maxxim facility. See Bush & Burchett, Inc. v. Reich , 117 F.3d 932, 936 (6th Cir. 1997); Otis Elevator Co. v. Sec’y of Labor ,No. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 8

921 F.2d 1285, 1287 (D.C. Cir. 1990) (Thomas, J.). Th is is not a case in which the regulated entity seeks to hide from any regulation. It just thinks, quite reasonably, that the Secretary’s authority applies to it through the Occupational Safety and H ealth Administration, not the Mine Safety and Health Administration.
We are not alone in distinguishing manufactur ers and repairers of mining equipment from the mines that use that equipment. A utility company that sells electri city and visits mines monthly to read and update its meters is not a mine operator. Old Dominion Power Co. v.
Donovan , 772 F.2d 92, 93, 96 (4th Cir. 1985). A mining engineer who works in an office and at
other locations where no mineral extr action takes place is not a miner. Paul v. Fed. Mine Safety
& Rev. Comm’n , 812 F.2d 717, 717–18, 720 (D.C. Cir. 1987). A nd a manufacturer that sells and delivers steel products to a mine is not a mine operator. N. Ill. Steel Supply Co. v. Sec’y of
Labor , 294 F.3d 844, 845, 849 (7th Cir. 2002).
The Alpha mines are “one-step removed from” the Maxxim repair shop, and it makes no difference that Alpha may one day use the shop’s fabricated or repaired equipment “to perform work directly on the extracted coal.” Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor v. Ziegler Coal Co. , 853 F.2d 529, 536 (7th Cir. 1988). In point of fact, Ziegler Coal Co. dealt with a facility similar to the one in this case—a repair s hop “located approximately one and one-half miles away from the nearest Ziegler coal mine”—and the Seve nth Circuit nonetheless ruled that the repair shop was not a mine. Id. at 531, 536–37.
When government lawyers seek Chevron deference, the question is not whether they can identify an ambiguity, any ambiguity, in the words of a statute. The question is whether they can identify a competing reasonable in terpretation of the statute. See Henry Ford Health Sys. v. Dep’t of Health & Human Servs. , 654 F.3d 660, 664 (6th Cir. 2011). But the Secretary’s competing interpretation of § 802(h)(1)(C) is not a reasonable one—and not just because it
overlooks all of the textual and precedential clues identif ied above. The Secretary’s interpretation also has no stopping point.
Consider how the Secretary’s position would have applied to the late, but once formidable, Jeffrey Mining Manufacturing Compa ny. Founded in 1876, it was once the largestNo. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 9

maker of underground coal mining equipment in the four States of the Sixt h Circuit, and indeed was once the largest such manufacturer in the world. Robert H. Jeffrey, Address at the Columbus Historical Society: Jeffrey’ s Manufacturing History in Columbus 2, 4, 10, 12 (Sept. 26, 2002), https://www.jeffreyco.com/docs/Short_ History.pdf. The ma nufacturing plant and repair shops were based in Columbus, Ohio, and were not remotely near any working mine. Yet the Secretary’s position—that any “facility” that makes “equipment” that is “used” or “to be
used” in a coal mine is a coal mine—would have transformed that plant into a coal mine. Congress deserves more cr edit than that. The statute is “tailo red to the dangers that arise from handling coal” and other minerals, not the ge neric dangers of making mining equipment. Power Fuels, LLC v. Fed. Mine Safety & Health Rev. Comm’n , 777 F.3d 214, 217 (4th Cir. 2015).
Even the Mine Safety and Health Admini stration seems to doubt its assumption of authority. In practice, it has not shown the cour age of today’s convictions. It has not asserted jurisdiction over five other Maxx im shops or the Maxxim equipmen t depot that sells loaders and other machines to mining companies. Like th e Sidney shop, those shops are not locations where coal is extracted or prepared. The Administratio n did there what it should have done here: leave any such regulation to the Occupationa l Safety and Health Administration.
In advancing a contrary pos ition, the Secretary l eans heavily on another decision of the
Commission: Secretary of Labor, Mine Safety & He alth Administration v. Jim Walter Resources, Inc. , 22 F.M.S.H.R.C. 21 (2000). Jim Walter held that an off-site supply shop, which stored hard hats, safety glasse s, nails, conveyor belts, belt st ructures, oil filters, and other supplies exclusively for the use of the shop’s pa rent company, was a “coal or other mine.” Id. at 22, 25. We disagree. For the sa me reasons we reject the Commi ssion’s decision here, we reject
Jim Walters as well. We of course are not bound by an incorrect Commission decision. Once the agency tries to extend its ju risdiction to off-site shops and o ff-site equipment, the language of the statute provides no stopping point, leaving the sc ope of its jurisdiction to the whims of the Secretary. Far better, it seems to us, to stand bythe text and context of § 802(h)(1), which limit the agency’s jurisdiction to locations and equipmen t that are part of or adjacent to extraction, milling, and preparation sites.No. 16-3530 Maxxim Rebuild Co. v. MSHA, et al. Page 10

Alpha, it is true, needs facilities like Maxxi m’s to repair equipment and manufacture new parts. But that reality does not transform th e Sidney shop into a mine any more than it could have transformed the Jeffrey Company plant into a mine in the past or a Caterpillar plant into a mine in the future. Our court rejected a simila r argument in the context of a road and bridge constructed by a mining company. Even though th e road and bridge were the “only means of getting the minerals from the surface mine to th e loadout facility” and even though they were used in the process, that did not make them mines under § 802(h)(1)(C). Bush & Burchett , 117 F.3d at 939. A similar conclusion applies here.
For these reasons, we grant the petition for re view and reverse the Commission’s decision to exercise jurisdiction over the Maxxim facility.