PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1450

POWER FUELS, LLC,

Petitioner,

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; SECRETARY OF 

LABOR, MINE SAFETY AND HEALTH ADMINISTRATION,

Respondents.

On Petition for Review of an Order of the Federal Mine Safety 

and Health Review Commission. (VA 2013-403; VA 2013-312-R; VA 

2013-313-R; VA 2013-353-R)

Argued: December 11, 2014 Decided: January 27, 2015

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. 

Petition for review denied by published opinion. Judge 

Wilkinson wrote the opinion, in which Judge Gregory and Judge 

Duncan joined.

ARGUED: Wade Wallihan Massie, PENN, STUART & ESKRIDGE, Abingdon, 

Virginia, for Petitioner. Tamara Yael Hoflejzer Burnett, UNITED 

STATES DEPARTMENT OF LABOR, Arlington, Virginia, for 

Respondents. ON BRIEF: Seth M. Land, PENN, STUART & ESKRIDGE, 

Abingdon, Virginia, for Petitioner. M. Patricia Smith, 

Solicitor of Labor, Heidi W. Strassler, Associate Solicitor, W. 

Christian Schumann, Appellate Litigation, Sara L. Johnson, 
2

UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for 

Respondents.
3

WILKINSON, Circuit Judge:

Power Fuels, LLC, petitions for review of a final order of 

the Federal Mine Safety and Health Review Commission. Power 

Fuels operates a facility that receives, blends, stores, and 

delivers coal to meet the specifications of a power plant 

located across the road. The Department of Labor’s Mine Safety 

and Health Administration (“MSHA”) asserted jurisdiction over 

the facility under the Federal Mine Safety and Health Act of 

1977 (“Mine Act”).

The Mine Act covers operators of a “coal or other mine,” 

including facilities engaged in the “work of preparing coal.” 30 

U.S.C. § 802(h)(1)(C), (i). Power Fuels challenged the Secretary 

of Labor’s assignment of jurisdiction to MSHA, rather than to 

the nonspecialized Occupational Safety and Health Administration

(“OSHA”). We hold that the Secretary permissibly concluded that 

a facility that blends coal for a nearby power plant was subject 

to the Mine Act. Because the Mine Act covers this kind of 

activity, MSHA’s assertion of jurisdiction was proper. We 

therefore deny the petition for review.

I.

The parties do not dispute the facts underlying this case. 

In any event, we will sustain the Commission’s factual findings 
4

so long as they are “supported by substantial evidence on the 

record considered as a whole.” 30 U.S.C. § 816(a)(1).

A.

Power Fuels owns and operates a coal-blending terminal in 

Wise County, Virginia. At this site, Power Fuels receives, 

tests, weighs, samples, mixes, blends, stores, loads, and 

transports coal for its customer, Virginia Electric and Power 

Company, doing business as Dominion Virginia Power. Dominion 

runs a power plant, the Virginia City Hybrid Energy Center, 

which produces electricity from coal and biomass. Power Fuels’ 

blending terminal and Dominion’s plant are situated on adjoining 

properties.

Power Fuels works as a contractor for Dominion under a 

formal agreement. The products provided by Power Fuels include

coal and coal refuse, or “gob.” Power Fuels mixes an estimated 

average of eight thousand tons of coal per day for Dominion at 

the blending terminal, and the facility stores an eight-day 

supply of fuel for Dominion’s use. Dominion owns all the coal 

that Power Fuels prepares. Approximately eighty percent of the 

fuel consumed at Dominion’s plant passes through Power Fuels’ 

blending terminal, while the remaining twenty percent comes to 

the plant from other locations.
5

Power Fuels blends the coal according to the precise

specifications provided daily by Dominion to ensure a proper 

reaction at the power plant. After the coal arrives, Power Fuels 

samples it and moves the material into separate piles, and it 

then uses equipment at the facility to blend the coal as 

directed by Dominion. Dominion’s orders specify, for example, 

the number of buckets of each material to be used in the desired 

blend, as well as moisture, ash, sulfur, and BTU content. Under 

the companies’ agreement, Power Fuels may recommend 

modifications of Dominion’s order, but it must blend the coal as 

instructed unless Dominion decides to change the specifications 

for that day. Power Fuels then tests the product. Based on the 

test results, Dominion may alter the order, in which case Power 

Fuels blends and tests the pile again until it meets Dominion’s 

needs. The facility does not extract, crush, size, screen, or 

wash coal during this process. Finally, trucks transport the 

finished products across the road, from the blending terminal to 

Dominion’s power plant. 

B.

Dominion’s plant and Power Fuels’ terminal both began 

operations in 2011. The following year, an inspector from MSHA 

noticed trucks delivering coal to the Power Fuels site. The 

agency was unaware at the time of any coal-preparation 
6

facilities operating there. An investigator from MSHA then 

visited the site and observed that Power Fuels was blending, 

storing, and loading coal for the power plant across the road. 

Following a review by MSHA and the Department of Labor’s Office 

of the Solicitor, the Secretary determined that the blending 

terminal was subject to MSHA’s jurisdiction.

Once MSHA asserted jurisdiction, the agency began 

performing inspections of the facility. In April 2013, an 

inspector issued three citations to Power Fuels for violations 

of MSHA standards involving the trucks’ braking systems and 

warning devices. See 30 C.F.R. § 77.410(c), 77.1605(b). The 

agency assessed a civil penalty of one hundred dollars for each 

citation. MSHA later imposed additional citations on Power 

Fuels, but the contests of those citations have been stayed 

pending the outcome of this appeal.

Power Fuels contested the three initial citations on the 

ground that it was not the operator of a mine for the purposes 

of the Mine Act, and that MSHA consequently lacked jurisdiction. 

In November 2013, an administrative law judge for the Federal 

Mine Safety and Health Review Commission held an evidentiary 

hearing. In a March 2014 decision, the ALJ concluded that Power 

Fuels was engaged in the “work of preparing the coal” under the 

Mine Act. 30 U.S.C. § 802(h)(1)(C), (i). The ALJ took particular 

note of the fact that “the testing, blending, and re-blending as 
7

necessary, are directly accomplished in order to [e]nsure and 

maintain the consistent quality of the coal pursuant to 

Dominion’s quality specifications.” J.A. 333. The ALJ 

accordingly ruled that MSHA’s jurisdictional assertion was 

proper, and he affirmed the citations and accompanying 

penalties.

Power Fuels filed a petition for discretionary review with 

the Commission. The Commission declined to grant review, and 

consequently the ALJ’s decision became the final order of the 

Commission. See 30 U.S.C. § 823(d)(1). Power Fuels now petitions 

for review in this court. See id. § 816(a).

II.

A.

The Mine Act specifically protects the safety and health of 

individuals who work in a “coal or other mine.” 30 U.S.C. 

§ 802(h)(1)(C); see id. § 801. But even before MSHA asserted 

jurisdiction under the Mine Act, Power Fuels’ blending terminal 

was not beyond the reach of federal safety and health 

regulations. The Occupational Safety and Health Act of 1970 

(“OSH Act”) provides a statutory baseline for “assur[ing] so far 

as possible every working man and woman in the Nation safe and 

healthful working conditions.” 29 U.S.C. § 651(b). This farreaching enactment mandates workplaces “free from recognized 
8

hazards.” Id. § 654(a)(1). Where Congress has enacted an 

industry-specific statute conferring authority over working 

conditions on another agency, however, the OSH Act does not 

apply. 29 U.S.C. § 653(b)(1). The Mine Act, which governs

occupational safety and health at “[e]ach coal or other mine,” 

is such a statute. 30 U.S.C. § 803. 

In practice, then, the regulatory dynamic involves 

displacement: MSHA may “exercise[] its statutory authority under 

the Mine Act in such a way as to preempt OSHA’s regulatory 

jurisdiction under the OSH Act.” United Energy Servs., Inc. v. 

Fed. Mine Safety & Health Admin., 35 F.3d 971, 977 (4th Cir. 

1994). The OSH Act is “comprehensive,” Martin v. Occupational 

Safety & Health Review Comm’n, 499 U.S. 144, 147 (1991), but it 

also affords space for specialized regulatory schemes. The 

Secretary of Labor administers both the Mine Act and the OSH Act

and determines initially whether a workplace falls under the 

jurisdiction of MSHA, rather than OSHA. See, e.g., Sec’y of 

Labor v. Nat’l Cement Co. of Cal., 494 F.3d 1066, 1073 (D.C. 

Cir. 2007).

The regulatory systems administered by MSHA and OSHA share 

many similarities, but the differences -- in scope and 

enforcement -- may hold significant implications for an employer 

and its employees. For example, although OSHA has established 

extensive workplace standards for toxic and hazardous 
9

substances, see 29 C.F.R. pt. 1910, subpts. H, Z, MSHA’s 

regulations are specifically tailored to the dangers that arise 

from handling coal, such as exposure to coal dust and other 

airborne contaminants, see 30 C.F.R. pt. 71. The Mine Act also 

provides the Secretary with an array of enforcement mechanisms, 

such as inspections, investigations, recordkeeping, citations, 

and orders, that are particularized to the industry’s hazards. 

See 30 U.S.C. §§ 813, 814. The Secretary may need to draw on 

“historical familiarity and policymaking expertise” to determine 

which agency’s framework is appropriate for a given workplace. 

Martin, 499 U.S. at 153.

B.

With the Mine Act, Congress fashioned a law that is not 

only tailored to a specific industry, but also comprehensive in 

its coverage. The force of the statute is evident even from 

Congress’s preliminary declarations. 30 U.S.C. § 801(c) 

(identifying “an urgent need to provide more effective means and 

measures for improving the working conditions and practices in 

the Nation’s coal or other mines in order to prevent death and 

serious physical harm, and in order to prevent occupational 

diseases originating in such mines”). Congress also expressed 

particular solicitude for the individuals who are continually 

exposed to the hazards of mining. Id. § 801(a) (announcing that 
10

“the first priority and concern of all in the coal or other 

mining industry must be the health and safety of its most 

precious resource -- the miner”). And Congress indicated that, 

even as new mandatory standards were developed, id. § 801(g)(1)-

(2), operators would need to work with their employees to keep 

these workplaces safe, id. § 801(e) (stating that “the operators 

of such mines with the assistance of the miners have the primary 

responsibility to prevent the existence of such conditions and 

practices in such mines”).

The Mine Act is also a broadly written statute. “Each coal 

or other mine” is subject to the coverage of the Mine Act, id.

§ 803, and that term carries an expansive statutory meaning, see

id. § 802(h)(1). As relevant to this case, the Mine Act provides 

that the term “coal or other mine” encompasses:

lands, excavations, underground passageways, shafts, 

slopes, tunnels and workings, structures, facilities, 

equipment, machines, tools, or other property 

including impoundments, retention dams, and tailings 

ponds, on the surface or underground, used in, or to 

be used in, or resulting from, the work of extracting 

such minerals from their natural deposits in nonliquid 

form, or if in liquid form, with workers underground, 

or used in, or to be used in, the milling of such 

minerals, or the work of preparing coal or other 

minerals, and includes custom coal preparation 

facilities.

Id. § 802(h)(1)(C) (emphasis added). The definition of the “work 

of preparing the coal,” in turn, includes a lengthy list of 

activities, as well as a flexible final phrase: “the breaking, 
11

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

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

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

operator of the coal mine.” Id. § 802(i).

As the statutory text makes clear, the coverage of the Mine

Act is not limited to extractive activities only. The Act, 

crucially, extends to a variety of activities involved in 

preparing coal. The statute’s jurisdictional reach is 

deliberately broad, and the concomitant definitions are not 

rigid. As the Senate Committee Report stated, “what is 

considered to be a mine and to be regulated under this Act” 

ought to “be given the broadest possibl[e] interpretation,” and 

any “doubts” about jurisdiction ought to “be resolved in favor 

of inclusion of a facility within the coverage of the Act.” 

S. Rep. No. 95-181, at 14 (1977), reprinted in 1977 U.S.C.C.A.N. 

3401, 3414. In sum, Congress concluded that the workplace 

hazards associated with mining coal or other minerals required 

safety and health measures specifically tailored to the 

industry. Congress thus produced a comprehensive statute to 

ensure that the people who face such dangers -- even workers 

involved not in extraction but in preparation -- would be 

protected.
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III.

Power Fuels contends that MSHA’s jurisdiction under the 

Mine Act does not reach the company’s blending terminal. 

According to Power Fuels, the facility simply blends and stores 

coal as directed by a utility, and it does not undertake the 

type of work usually performed by the operator of a coal mine. 

But the Mine Act plainly says that a covered coal mine may 

engage in the “work of preparing coal,” 30 U.S.C. § 802(h)(1)(C) 

-- such as “mixing,” “storing,” and “loading” coal, as well as 

other comparable activities, id. § 802(i). The Act even states 

that coal mines may include “custom coal preparation 

facilities.” Id. § 802(h)(1)(C). Whether this question is viewed 

through the prism of the kind of facility that Power Fuels 

operates or the kind of work that Power Fuels performs, it is 

clear that Power Fuels falls within the coverage of the Mine 

Act.

A.

Power Fuels’ blending terminal is the type of facility that 

is subject to the Mine Act. The Mine Act enables MSHA to 

regulate “[e]ach coal or other mine,” “each operator of such 

mine,” and “every miner in such mine.” 30 U.S.C. § 803; see id.

§ 802(d), (g), (h). The statutory meaning of “coal or other 

mine” expressly embraces facilities engaged in the “work of 
13

preparing coal.” Id. § 802(h)(1)(C). The coal mines covered by 

the Act also specifically include “custom coal preparation 

facilities.” Id. Power Fuels’ blending terminal is such a 

facility.

At the blending terminal, Power Fuels receives, tests, 

weighs, samples, mixes, blends, stores, loads, and transports 

coal to meet the specifications of its customer, Dominion. With 

some eight thousand tons of coal mixed each day and eight days 

of fuel stored onsite, this is not a small operation. Coal 

preparation logically involves an anticipated use -- preparation 

for something else. See also Bureau of Mines, U.S. Dep’t of the 

Interior, A Dictionary of Mining, Mineral, and Related Terms 226 

(Paul W. Thrush ed., 1968) (defining “coal preparation” as a 

“collective term for physical and mechanical processes applied 

to coal to make it suitable for a particular use”). The 

anticipated use here is consumption at Dominion’s power plant 

across the road. As Power Fuels itself explains, Dominion’s 

plant “employs state-of-the-art systems,” and the composition of 

each coal blend produced by Power Fuels “has to meet precise 

specifications to react properly in the furnace burn chamber.” 

Petitioner’s Br. at 3, 5. Even though Dominion sets the 

specifications, it is the Power Fuels facility that prepares the 

coal for the finely calibrated, continually customized 
14

consumption process at Dominion’s plant. In letter and spirit, 

the Mine Act extends to facilities of this kind.

B.

It is further evident that the type of work performed by 

Power Fuels comes within the purview of the Mine Act. The Act’s 

definition of “coal or other mine” refers to the “work of 

preparing coal.” 30 U.S.C. § 802(h)(1)(C). Under the statute, 

the “work of preparing the coal” may involve an array of 

enumerated actions -- “breaking, crushing, sizing, cleaning, 

washing, drying, mixing, storing, and loading” coal. Id.

§ 802(i). The string of statutory verbs is indicative of 

Congress’s intent to regulate a comprehensive range of 

activities related to coal preparation. More pointedly, several 

of those verbs describe precisely what Power Fuels is doing. 

Power Fuels avers that it does not crush, size, screen, or wash 

coal. But, as Power Fuels acknowledges, it does engage in 

several of the covered functions: the terminal mixes, stores, 

and loads coal.

Beyond the enumerated activities, the “work of preparing 

the coal” also encompasses “such other work of preparing such 

coal as is usually done by the operator of the coal mine.” Id.

Power Fuels argues that this phrase serves to limit the listed 
15

verbs to work “of the type” usually performed by mine operators. 

We do not read the phrase so restrictively.

We think this phrase is one of inclusion, not exclusion. It 

broadens the range of activities covered rather than limiting 

them. Indeed, the statute tells us that the “work of preparing 

the coal” includes the enumerated verbs “and” also this “other 

work.” Id. (emphasis added). Under the grammatical “rule of the 

last antecedent,” the qualifying words (here, “as is usually 

done by the operator of the coal mine”) ordinarily modify only 

the term that they immediately follow (here, “such other work of 

preparing such coal”). See, e.g., Barnhart v. Thomas, 540 U.S. 

20, 26-28 (2003); see also 2A Norman J. Singer & J.D. Shambie 

Singer, Sutherland Statutes and Statutory Construction § 47:33 

(7th ed. 2014). Moreover, the phrase “as is usually done by the

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

refers to the particular coal mine in question, not 

a paradigmatic coal-mine operator, as Power Fuels suggests.

Our interpretation accords not only with the grammatically 

sound meaning of this provision, but also with the mode of 

analysis mandated by precedent. This court has explained that 

the Mine Act “sets forth a functional analysis, not one turning 

on the identity of the consumer.” United Energy Servs., Inc. v. 

Fed. Mine Safety & Health Admin., 35 F.3d 971, 975 (4th Cir. 

1994). We have emphasized that “the proper focus of our analysis 
16

is on the safety of mining operations,” and indeed it is highly 

significant if a company’s “employees are subject to the same 

risks as any other employee engaged in the ‘work of preparing 

coal.’” Id. The inquiry turns on how the facility uses the coal 

and whether the employees are exposed to the safety and health 

hazards associated with coal-preparation activities. The text of 

the statute, which defines “coal or other mine” and the “work of 

preparing the coal,” provides basic tools for this functional 

test. 30 U.S.C. § 802(h)(1)(C), (i). Power Fuels’ blending 

terminal performs the “work of preparing coal” -- indeed, 

massive quantities of coal each day -- and thereby subjects 

workers to the risks contemplated in the Mine Act.

Power Fuels contends that this interpretation admits no 

limitation. That is incorrect. The limitations are expressed in 

the statute itself. The Mine Act covers those sites used for the 

“work of preparing coal,” including “custom coal preparation 

facilities,” like that operated by Power Fuels. Id.

§ 802(h)(1)(C). Covered sites may be engaged, inter alia, in the 

“mixing,” “storing,” and “loading” of coal as well as “such 

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

entity. Id. § 802(i). Such activities are the reason the Power 

Fuels facility is in business. In fact, the statute seems 

written with coal-preparation sites like Power Fuels’ in mind. 

But the Mine Act does not encompass all companies that burn or 
17

consume coal, and we do not suggest that it does. The 

jurisdictional inquiry is more particularized. MSHA’s own 

enforcement guidance indicates that the agency “will not inspect 

facilities where coal is prepared solely to facilitate loading 

and not to meet specifications or to render the coal for any 

particular use.” Mine Safety & Health Admin., U.S. Dep’t of 

Labor, 1 Program Policy Manual § 3-4, at 2 (rev. ed. June 12, 

2014). In other words, MSHA’s jurisdiction does not extend to 

every facility where coal may in some way be involved. The scope 

of the Act may still exceed what Power Fuels might wish, but 

that of course is a matter of policy entrusted to Congress, not 

the courts.

By contrast, Power Fuels’ suggested approach may herald a 

return to the era before the Mine Act was enacted in 1977. One 

predecessor statute, the Federal Coal Mine Safety Act, ch. 877, 

66 Stat. 692 (1952), covered a much narrower range of coal 

operations. Under this 1952 statute, a “mine” was used only for 

the “work of extracting . . . coal” and the “work of processing 

the coal so extracted” by the mine operator. § 201(a)(7), 66 

Stat. at 692 (emphasis added). The “work of processing the coal” 

was restricted to that “usually done by the operator,” and it 

specifically excluded processing activities “usually done by a 

consumer or others.” Id. Seventeen years later, Congress 

broadened the statutory coverage in the Federal Coal Mine Health 
18

and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742. The 

1969 legislation defined a “coal mine” as involved in the “work 

of extracting . . . coal” and the “work of preparing the coal so 

extracted,” and the term’s meaning expressly included “custom 

coal preparation facilities.” § 3(h), 83 Stat. at 744. The 

revised law spoke of “preparing” rather than “processing” coal, 

and it eliminated the language from the 1952 statute that had 

excluded coal processing usually done by a consumer or other 

actors. § 3(h), (i), 83 Stat. at 744. Finally, in 1977, Congress 

passed the Mine Act, integrating safety and health protections 

for miners of coal and other minerals into one statute --

covering such workers whether they are engaged in extraction, 

milling, or preparation. 30 U.S.C. § 802(h)(1)(C). The present 

Mine Act provision, notably, no longer references coal “so 

extracted”: it simply uses the now-familiar term, the “work of 

preparing coal.” Id.; see id. § 802(i).

The 1977 Mine Act has driven the functional analysis 

employed by this court. We decline the invitation to interpret 

the Mine Act in a way that returns extraction, or other outmoded 

distinctions, to the center of the analysis. Such an approach 

might have been appropriate under the legislative framework that 

prevailed a half century ago. It is not today.
19

C.

The parties disagree over the degree of deference we owe to 

the Secretary of Labor’s interpretation. The basic question is 

whether we should defer to the Secretary’s interpretation so 

long as it is reasonable, Chevron U.S.A. Inc. v. Natural Res. 

Def. Council, Inc., 467 U.S. 837, 842-44 (1984), or whether his 

interpretation is entitled to respect only to the extent of its 

“power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140 

(1944). But we need not explore that issue. Congress’s intent in 

the Mine Act is plain, and “[i]f the intent of Congress is 

clear, that is the end of the matter.” Chevron, 467 U.S. at 842; 

see also id. at 843 n.9. In any event, the Secretary’s 

interpretation here warrants respect. See Sec’y of Labor ex rel. 

Wamsley v. Mut. Mining, Inc., 80 F.3d 110, 114-15 & n.3 (4th 

Cir. 1996). The Secretary, after all, is the administrator 

charged with overseeing the borderline between the background 

regulations of OSHA and the specialized regulations of MSHA. We 

have been instructed not to “waste [our] time in the mental 

acrobatics needed to decide whether an agency’s interpretation 

of a statutory provision is ‘jurisdictional’ or 

‘nonjurisdictional.’” City of Arlington v. FCC, 133 S. Ct. 1863, 

1870 (2013). Instead we are asked to decide, “simply, whether 

the statutory text forecloses the agency’s assertion of 

authority, or not.” Id. at 1871. In this instance, it does not.
20

IV.

For the foregoing reasons, the petition for review is 

denied.

PETITION FOR REVIEW DENIED