by the word is much more encompassing than the usual meaning attributed to it[. T]he word
means what the statute says it means.” Jd. at 592. Similarly, In Harman Min. Corp. v. FMSHRC,
the Fourth Circuit held that a plant’s “car dropping” facility, where railroad cars were loaded
with coal, was a mine. 671 F.2d 794 4" Cir. 1981). The Court held that the broad definition of
“mine” included “all of the facilities used at a coal preparation plant.” Jd. at 796. In Donovan v.
Carolina Stalite Co., the D.C. Circuit held that a slate gravel processing facility that was
immediately adjacent to a quarry, but was not engaged in direct slate extraction was a mine
because it fit within Section (C)’s inclusion of “structures.” 734 F.2d 1547 (D.C. Cir. 1984).

In National Cement Co. of Ca. Inc., the D.C. Circuit held that the Secretary’s
interpretation of Section 3(h)(1) was reasonable when it argued that Mine Act jurisdiction
extended to a private road leading to the plant. 573 F.3d 788 (D.C. Cir. 2009). In this case, the
Secretary explained the interplay between the three subsections of Section 3(h)(1)(B), which the
Court accepted as reasonable. The Secretary interpreted the word “area” in Subsection (A) as
“all-encompassing because virtually everything in an extraction area ... is necessarily related to
[mining] activity.” Id. at 794. The Secretary interpreted Subsection (B) to cover mining roads,
but not the vehicles traveling on those roads. Jd. Lastly, the Secretary interpreted Subsection (C)
to cover mining related vehicles traveling on mining roads. /d. at 795. “Subsections (B) and (C)
can be read to work in tandem.” Id.

In the seminal case, MSHA v. Jim Walter Resources, Inc., the Commission held that a
central supply shop used to repair and maintain electrical and mechanical equipment at nearby
mines was a mine under the Act. 22 FMSHRC 21 (Jan. 2000).'! The Commission reasoned that
the language of the Mine Act was clear, stating:

The stipulated record is equally clear in establishing that the Central Supply Shop
is a dedicated off-site facility of a (multiple) mine operator where employees
receive, stock, maintain, and deliver equipment, tools, and supplies used at JWR’s
coal extraction sites, preparation plants, and Central Supply Shop, including, inter
alia, rock dust, line curtains, hard hats, machine parts, and conveyor belts.
Consequently, there is Mine Act jurisdiction because a “““mine” includes
“facilities” and “equipment ... used in or to be used in” JWR’s mining operations
or coal preparation facilities.

Id. At 25. In dicta, the Commission cited to the W.J. Bokus Industries for the proposition that
“whether a mine operator’s equipment is covered by the Mine Act is not determined by its

"' Similarly, in MSHA v. U.S. Steel Mining Co., the Commission held that an off-site central
repair shop, which had a separate Mine ID, and “exists and functions to repair and maintain
electrical and mechanical equipment used in or to be used in USSM's underground and surface
coal mines and its coal cleaning plant” constituted a separate “surface coal mine” under the Act.
10 FMSHRC 146, 149 (Feb. 1988). Also, in MSHA v. W.F. Saunders & Sons, ALJ Melick held
that a preparation plant’s truck shop and storeroom, which was primarily used to store and repair
trucks used in mining, was a mine under the Act.1 FMSHRC 2130 (Dec. 28, 1979) (ALJ).

14


19.

20.

21.

22.

23.

24.

25.

26.

At the time that CMI Smith inspected the haul trucks referenced in Citation
Nos. 9222038 and 9222040, the trucks were not hauling coal, were not on a
haul-road and were parked at K C Transport’s maintenance area for
maintenance work to be performed on the trucks.

On March 11, 2019, K C Transport’s maintenance/shop area, where the trucks
referenced in Citation Nos. 9222038 and 9222040 were located, was property
that was not permitted or bonded by the state of West Virginia. See
Respondent’s Exhibit A (map).

Until the Citation Nos. 9222038 and 9222040 were issued, MSHA never
sought to enter or inspect K C Transport’s Emmett maintenance shop or
parking area at any time, from the time K C Transport constructed the
parking lot to the time the citations were issued. MSHA has not attempted to
enter or inspect this area or the trucks while at this location, since the
citations.

On one occasion, on April 3, 2018, MSHA did cite a work trailer and muddy
parking area that K.C. Transport had adjacent to where the haulage road
intersects with Right Hand Fork Road. (Citation Nos. 9174394 and 9174395).
However, MSHA vacated the citations for the work trailer and muddy parking
lot. After this incident, K C Transport elected to construct the new facility
approximately 1000 feet away from the haulage road up Right Hand Fork
Road.

When Citation Nos. 9222038 and 9222040 were issued, MSHA did not
attempt to inspect the shipping containers, service trucks or any other trucks at
the location, nor did MSHA inspect the logging trucks which were located at
K C Transport’s maintenance area.

To get to KC transport’s Emmett facility, it is necessary to pass along the
Ramaco Resources, LLC’s Elk Creek Plant haul-road until reaching the Right
Hand Fork Road hollow where the facility is located. Then it is necessary to
cross a creek and drive 1000’ up Right Hand Fork Road to the facility.

KC Transport’s maintenance facility where these trucks were inspected is
located more than a mile from the Elk Creek Plant, approximately 4-5 miles
from three (3) deep mines operated by Ramaco Resources, LLC and six (6)
miles from a strip mines and highwall mines operated by Ramaco Resources.
Thus, the closest location where coal is mined or prepared is more than a mile
from this facility.

All of the Ramaco mines are accessed via the haul-road. That haul-road is a
public road for some distance. However, before reaching the Elk Creek Plant,
there is a gate limiting public access to the haul-road beyond that location.
The gate is manned and only authorized persons are permitted beyond that


Austin Powder, and other cases discussed supra. The Respondent is correct that the location of
the trucks and the maintenance facility matter, and that the Secretary’s idea of the trucks being
rolling mines would lead to an absurdity.

However, in this instance, the maintenance and trucks were located four to five miles
from Ramaco’s three deep mines and more than a mile from the Elk Creek Plant. JS J 25. In Jim
Walter Resources, the central shop was not on the property of any one of the coal extraction
sites, but rather one mile from the closest site, six miles from two of the sites, and 25 miles from
the farthest site. 22 FMSHRC at 22. In U.S. Steel Mining Co., the shop at issue was located
approximately eight and a half miles from one mine, five miles from another mine, and a half
mile from the cleaning plant. 10 FMSHRC at 147. The location of K C Transport’s maintenance
facility is not remote from the extraction and processing sites. Indeed, its proximity leads to the
second question concerning the maintenance facility and trucks’ functions.

K C Transport asserted that approximately 60% of the services from the maintenance
facility are to the five nearby Ramaco Resource mines, and the other 40% is split between other
companies, including other coal operators. JS J 15. These services include operating on-road and
off-road trucks used in coal, gravel, and earth haulage. JS J 14. The two cited trucks at issue here
have been used at various times to haul coal from each of the Ramaco mines to the Elk Creek
Plant. JS | 27. The trucks used to haul the coal from the mine to the processing facility fit well
within the Mine Act’s definition of equipment used in the work of preparing coal. The
transportation of coal from those mines to that preparation plant is an integral part of the mining
and preparation process. Furthermore, the maintenance of the trucks at the facility is essential to
the coal hauling and preparation process. This interpretation is in line with the Commission’s
reasoning in W.J. Bokus, where the Commission found compressed gas cylinders, a stove, and a
grinder to be equipment used in mining. 16 FMSHRC at 707-709. The Commission reasoned
that miners worked in the garage where the gas cylinders were kept on mining-related tasks, the
grinder had been used to maintain mining equipment, and the stove warmed the garage where the
miners worked. Id.

I find the possibility of the “bifurcated coverage scheme” that the Secretary warns of to
be not quite as absurd as the Secretary states. In fact, it is already in existence many times over in
most aspects of mining and other industries. There are various interagency agreements and
memoranda of understanding between OSHA and MSHA precisely because jurisdiction often
shifts between the agencies. See eg State of Alaska, Dept. of Transportation, 36 FASHRC 2642;
W.J. Bokus Industries, 16 FMSHRC 704. Despite the Secretary’s dire warnings of a bifurcated
coverage scheme covering the trucks when they are on mines and/or engaged in mining-related
activities, and when they are not on mines engaged in activity unrelated to mining, this Court is
confident that the Department of Labor can adequately determine which agency and statute
provides coverage. ‘6

16 y udge Manning described the various statutory jurisdictions controlled by the Secretary of
Labor thusly: “The Secretary takes what is often called a ‘nooks and crannies’ approach when
interpreting OSHA jurisdiction. OSHA fills in the nooks and crannies that other safety statutes
do not cover.” Cox Transportation Corp., 22 FMSHRC at 580.

18


standard provides that “repairs or maintenance shall not be performed on machinery until the
power is off and the machinery is blocked against motion, except where machinery motion is
necessary to make adjustments.” 30 C.F.R. § 77.404(c). At the time the trucks were cited, the
trucks were not hauling coal or on a haul-road; rather, they were parked at the maintenance
facility for maintenance work. JS {J 19. The cited trucks have hauled coal from each of the
Ramaco mines to the Elk Creek Plant. JS {[ 27. The parties agree as to the gravity, negligence,
and penalty amounts if this Court finds jurisdiction over the trucks here. JS {| 39-43.

Contentions of the Parties

A difficult aspect of this case is that the parties do not seem to be on the same page as to
what issue is before the Court, with the Secretary arguing for jurisdiction over the trucks and the
Respondent arguing against jurisdiction over the maintenance facility. The Secretary states in its
opening brief, “The parties agree that the only issue in dispute concerning the citations is
whether the trucks are subject to MSHA coverage.”* SB at 1. Throughout its brief, the
Secretary’s arguments are almost entirely in support of the trucks, rather than the facility, being
under MSHA’s jurisdiction. The Secretary clarifies that “whether the maintenance area is a mine
subject to MSHA coverage need not be decided in this case to determine whether MSHA
coverage applied to the subject trucks.” SRB at 1.

In contrast, the Respondent states that “all that remains for the Court to decide is the
purely legal issue of whether MSHA had jurisdiction over K C Transport’s Emmett facility.” RB
at 6. The Respondent argues that “because K C Transport’s Emmett facility is not a ‘coal or other
mine,’ as defined in the Federal Mine Safety and Health Act of 1977 (‘Mine Act’), the Court
should find that MSHA was without jurisdiction over the facility and that Citation Nos. 9222038
and 9222040 should be vacated.” RB at 1. The Respondent's brief vacillates between arguing
against this position that the Secretary does not take and arguing that MSHA cannot assert
jurisdiction over the trucks without jurisdiction over the maintenance facility. RB at 8.

The Secretary argues that the definition of a “mine” was intended to be read broadly, and
that the trucks referenced in the citations are equipment that were used in the extraction and
preparation of coal and therefore subject to Mine Act coverage. SB at 14. The Secretary makes
clear that its argument is that the trucks, not the maintenance facility or any structures on the site,
are under MSHA jurisdiction. SRB at 1. The Secretary argues that though the Act is clear, if this
Court finds ambiguity, the Secretary should be accorded Chevron deference. SB at 15-16. If this
Court does not extend MSHA jurisdiction to the trucks, the Secretary asserts that it would create

raised unblocked bed. This citation was factor that contributed to the issuance of
Imminent Danger Order No. 9222039 dated 3/11/2019. Therefore, no abatement
time was set. Standard 77.404(c) was cited 2 times in two years at mine 4602444
(2 to contractor 77.404(c)).

SX-2.

* As will be discussed, infra, the parties did not in fact agree on this being the sole issue.

10


Biles

38.

39:

40.

4

42.

43.

45.

purpose of establishing its issuance and not for the purpose of establishing the
accuracy of any statements asserted therein.

Respondent’s Exhibit A is a map of the area. Neither party contests its
authenticity and it may be admitted into evidence for the purpose of
demonstrating the layout of the area and the permitted, bonded areas for the
Court as well as the location of K C Transport’s facility in relation to the Elk
Creek Plant.

With respect to Citation Nos. 9222038 and 9222040, K C Transport contests
that MSHA had jurisdiction over the trucks referenced in the citations, while
located at KC Transport’s Emmett, WV maintenance facility. K C Transport
argues that both citations should be vacated for lack of jurisdiction at this
location.

With respect to Citation Nos. 9222038 and 9222040, should the administrative
law judge find that MSHA did have jurisdiction over the trucks, while at K C
Transport’s maintenance facility, K C Transport concedes that the conditions
then present would violate 77.404(c) if the trucks had been subject to
jurisdiction. With respect to Citation Nos. 9222038 and 9222040, should the
administrative law judge affirm the finding that 77.404(c) was violated, the
parties have agreed that the gravity findings set forth in the citations shall be
affirmed.

With respect to Citation Nos. 9222038 and 9222040, should the administrative
law judge find jurisdiction and affirm the finding that 77.404(c) was violated,
the negligence for each citation shall be modified from moderate to low.

. With respect to Citation No. 9222038, should the administrative law judge

find jurisdiction and affirm the finding that 77.404(c) was violated, the parties
agree that the appropriate penalty amount is $3,908.00.

With respect to Citation No. 9222040, should the administrative law judge
find jurisdiction and affirm the finding that 77.404(c) was violated, the parties
agree that the appropriate penalty amount is $4,343.00.

For purposes of Section 110(i) of the Act, the proposed penalty amounts are
appropriate given the operator’s history of violations and the size of the
operator.

. Government Exhibit 3 is a photograph depicting how the truck referenced in

Citation No. 9222038 appeared at the time of inspection.

Government Exhibit 4 is a photograph depicting how the truck referenced in
Citation No. 9222040 appeared at the time of inspection.


point. The haul-road beyond the gate is maintained by Ramaco Resources and
is no longer a public road. KC Transport’s maintenance area is also accessed
only by traveling through the gate and up the haul-road to the turn-off at Right
Hand Fork Rd, although Right Hand Fork Road is not part of the haul-road.

27. At various times, the cited trucks have hauled coal from each of the Ramaco
mines to the Elk Creek Plant. The cited trucks were not licensed to haul
products over public roads at the time the citations were issued, but they have
been in the past and they may be in the future.

28. On or about March 11, 2019, the trucks referenced in Citation Nos. 9222038
and 9222040 were only being operated on private land, including haul-roads
operated by Ramaco Resources. There were other trucks parked at that same
location which were used by K C Transport to haul coal and materials other
than coal and for customers other than Ramaco.

29. The cited trucks are inspected regularly by MSHA when they are at the five
(5) Ramaco Resources LLC mines and at the Elk Creek prep plant and along
the haul-road. They had never previously been inspected at K C Transport’s
maintenance facility/parking area.

30. K C Transport operates about 35 trucks from the Emmett, West Virginia,
Maintenance Facility.

31. The proposed penalty amounts that have been assessed for the violations at
issue pursuant to 30 U.S.C. Section 820(a) will not affect the ability of K C
Transport to remain in business.

32. MSHA Coal Mine Inspector John M Smith was acting in his official capacity
and as an authorized representatives of the Secretary of Labor when Citation
Nos. 9222038 and 9222040 involved in this proceeding were issued.

33. True copies of each of the citations that are at issue in this proceeding along
with all continuation forms and modifications, were served on K C Transport
or its agent as required by the Act.

34. Each of the violations involved in this matter were abated in good faith.

35. Government Exhibit 1 is an authentic copy of Citation No. 9222038, with all
modifications and abatements, and may be admitted into evidence for the
purpose of establishing its issuance and not for the purpose of establishing the
accuracy of any statements asserted therein.

36. Government Exhibit 2 is an authentic copy of Citation No. 9222040,° with all
modifications and abatements, and may be admitted into evidence for the

5 The parties erroneously listed this citation as 9222038.


Therefore, this Court finds that MSHA had jurisdiction over the trucks at issue as well as
the maintenance facility. Accordingly, under the prior agreement of the parties, Citation No.
9222038 is affirmed, but modified to “low” negligence with a penalty amount of $3,908.00.
Citation No. 9222040 is affirmed, but modified to “low” negligence with a penalty amount of
$4,343.00.

ORDER
It is ORDERED that Citation Nos. 9222038 and 9222040 be modified to “low”

negligence, and the Respondent, K C Transport, Inc., is ORDERED to pay the Secretary of
Labor the sum of $8,251.00 within 30 days of this order. Mi

wy mh

py tA
John Kent\Lewis
Administrative Law Judge

Distribution:

Robert S. Wilson, Esq., U.S. Dept. of Labor, 201 12" St. South, Suite 401, Arlington, VA
22202-5450

Stephen S. Adkins, CLR, MSHA, 4499 Appalachian Highway, Pineville, WV 24874

James P. McHugh, Esq. & Christopher D. Pence, Esq., Hardy Pence PLLC, 10 Hale Street, 4h
Floor, P.O. Box 2548, Charleston, WV 25329

"7 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390

19


made even more difficult because even though both parties are arguing about jurisdiction, their
arguments are often not directed at each other.

K C Transport is an independent trucking business that provides hauling services to
various businesses, including coal and gravel mines. JS 1 7, 8. It owns and operates five
maintenance and storage facilities in Virginia and West Virginia. JS J 9. At issue here are trucks
that were located in the Emmett, West Virginia maintenance facility (hereinafter referred to as
the “maintenance facility”). JS I] 4-6. The maintenance facility provides off-road trucks for
haulage for five nearby Ramaco Resources mines and on-road trucks for earth haulage services
for American Electric Power (“AEP”), as well as trucks for gravel and coal haulage for other
customers. JS J 14. Approximately 60% of the services from the maintenance facility are for the
five nearby Ramaco Resources mines, including three deep mines, a strip mine, and a highwall
mine. JS J 15. The other 40% of K C Transport’s work from this facility provides services for
AEP and other coal operators. JS { 15. At the time of the citations, K C Transport was in the
process of constructing a new maintenance shop at this location. JS { 6.

In order to get to the maintenance facility, one travels along the Ramaco Resources Elk
Creek Plant haul-road until reaching the Right Hand Fork Road, following that road for
approximately 1,000 feet, until reaching the facility. JS {§] 4, 10, 24. The haul-road “is a public
road for some distance.” JS 26. The maintenance facility is located more than a mile from the
Elk Creek Plant, approximately four to five miles from three deep mines operated by Ramaco
Resources, and six miles from strip mines and highwall mines operated by Ramaco. Therefore,
the closest location where coal is mined or prepared is more than a mile from the maintenance
facility. JS J 25.

Here, an MSHA inspector at the Elk Creek Prep Plant traveled more than a mile up the
hollow along the haul-road, then turned at the Right Hand Fork Road and traveled along it for
approximately 1,000 feet, crossed a creek, and arrived at the maintenance facility. JS {| 4. Once
he arrived, he cited two trucks that were undergoing maintenance at the off-site K C Transport
maintenance facility for violations of 30 C.F.R. § 77.404(c).’ JS { 5; SX-1; SX-2. The mandatory

7 Citation No. 9222038 states:

The red Mack tandem coal truck Co# 120 is jacked up with the wheels and tires
off both back axles and is not blocked to prevent motion. The rear of the truck is
jacked up by using blocking under the back end of the bed and using the motion
of the bed when raised to lift the back wheels off the ground. Work is being
preformed [sic] on the brakes located on the back axles of the truck. Standard
77.404(c) was cited 1 time in two years at mine 4602444 (0 to the operator, 1 toa
contractor).

GX-1. Citation No. 9222040 states:

The bed on the Mack Co#5 coal truck is in the raised position and is not blocked
against motion. A miner is observed standing on the frame of the truck under the


FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689

MAR -3 2020
SECRETARY OF LABOR CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEVA 2019-458
Petitioner, A.C. No. 46-02444-487883 A8938
Vv.
K C TRANSPORT, INC.,
Respondent. Mine: Elk Creek Plant

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION
ORDER GRANTING SECRETARY’S MOTION FOR SUMMARY DECISION
ORDER TO MODIFY
ORDER TO PAY

Before: Judge Lewis

On December 20, 2019, The Secretary of Labor (“Secretary”) and K C Transport
(“Respondent”) filed with the undersigned cross-motions for partial summary decision in WEVA
2019-458.' The parties settled 18 of the 20 citations included in this docket prior to the motions
for summary decision.” The two remaining citations at issue in the motions for summary decision
are Citation Nos. 9222038 and 9222040, both for alleged violations of 30 C.F.R. § 77.404(c).

' The parties were offered the opportunity to file Reply Briefs and they both did so on January
10, 2020.

? A Decision Approving Partial Settlement was issued on December 19, 2019.
> The full text of the Regulation is as follows:
§ 77.404 Machinery and equipment; operation and maintenance.
(a) Mobile and stationary machinery and equipment shall be maintained in safe

operating condition and machinery or equipment in unsafe condition shall be
removed from service immediately.


The Secretary’s argument that MSHA has jurisdiction over a truck that was used to haul coal, no
matter where that truck is located, expands MSHA’s jurisdiction to every road, parking lot,
garage, and facility in the country. Mobile equipment such as trucks would essentially become
rolling mines under the Secretary’s interpretation. Under the Secretary’s interpretation, if the
trucks at issue here were hundreds of miles from the mine and were undergoing maintenance at a
private mechanic, MSHA would have jurisdiction over those trucks. If the trucks were parked at
a diner while the drivers ate, MSHA would have jurisdiction. If the trucks were hauling lumber
for a lumberyard, MSHA would have jurisdiction. Beyond the absurdity of MSHA having
geographically and functionally limitless jurisdiction over the trucks, there would also be the
problem that any person working on the truck or driving it at any time might be considered a
miner under Section 3(g) (“‘miner’ means any individual working in a coal or other mine.” 30
U.S.C. 802(g).)

“In enacting the statute, Congress was plainly aware that the mining industry is among
the most hazardous in the country and that the poor health and safety record of this industry has
significant deleterious effects on interstate commerce.” Donovan v. Dewey, 452 U.S. 594, 602
(1981). As a result, Congress took care to put in place a strict regulatory scheme to protect the
health and safety of miners at a mine. However, it carefully described what constituted a mine,
creating three general categories that were geographically and functionally centered. Congress’s
definition does not include trucks in whatever location they may be and whatever they may be
doing. However, the Mine Act clearly defines a mine in a manner that includes, under the facts
of this case, both the maintenance facility and the equipment (or trucks) therein. While MSHA
cannot simply attach jurisdiction to the trucks and follow them wherever they may drive, it can
assert jurisdiction over the maintenance facility and all the equipment at the facility that is used
for mining?

Section 4 of the Mine Act makes clear that “Each coal or other mine, the products of
which enter commerce, or the operations or products of which affect commerce, and each
operator of such mine, and every miner in such mine shall be subject to the provisions of this
chapter.” 30 U.S.C. § 803. The Act further provides in Section 3(h)(1) three categories of
definitions for what constitutes a “coal or other mine” as:

(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
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment, machines,

° It should be noted that if MSHA asserts jurisdiction over the maintenance facility, trucks and
other equipment contained on the site, it must conduct inspections “of the mine in its entirety at
least two times a year.” 30 U.S.C. § 813(a). In the instant case, the MSHA inspector only
inspected the trucks, and “did not inspect the shipping containers, service trucks or any other
truck at the location.” JS J 23. It is not entirely clear from the record whether all this equipment
was mining-related, but if so, MSHA would be required to conduct such comprehensive
inspections.

12


“a bifurcated coverage scheme [that] would be impractical, if not impracticable, and would lead
to confusion on the part of miners and the operator itself as to what standards were applicable at
any given time.” Jd. at 19. The Secretary refers to this bifurcated coverage between MSHA and
OSHA as “an absurd result.” SRB at 3.

The Respondent argues that off-site facilities, such as the maintenance facility here, are
not under MSHA jurisdiction. RB at 6-7. It further argues that location is key to understanding
whether MSHA has jurisdiction over equipment, and that MSHA cannot simply attach
jurisdiction to a piece of mobile equipment and follow that equipment “wherever it goes.” RB at
2. It argues that MSHA can cite the trucks at issue while they are at any of the Ramaco mines or
Elk Creek preparation plant, but not when they are located in an area that is not under MSHA’s
jurisdiction.

Because the parties’ briefs raise both the issue of whether the maintenance facility is a
mine and whether the trucks are mines, this Court will consider both questions. Based on the
following analysis, this Court rejects the Secretary’s argument that each of these trucks
constituted a “mine” under the Act no matter where they are located. However, this Court also
rejects the Respondent’s argument that the maintenance facility was not a “mine” under the Act.
Rather, this Court finds that the maintenance facility was a “mine” under Section 3(h)(1)(C), and
because the trucks were used in mining and parked at the facility, they constituted “equipment”
under the same section. However, MSHA’s jurisdiction over the trucks is not limitless; though it
is clear that MSHA had jurisdiction in the instant case, it would likely lack such jurisdiction if
the trucks were at a non-mining site performing non-mining activities.

Case Disposition

The first inquiry here must be “whether Congress has directly spoken to the precise
question at issue.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). “If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-
843. “In ascertaining the plain meaning of the statute, courts utilize traditional tools of
construction, including an examination of the ‘particular statutory language at issue, as well as
the language and design of the statute as a whole,’ to determine whether Congress had an
intention on the specific question at issue. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988); Local Union 1261, UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment Project v.
Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989).” MSHA v. Jim Walter Resources, Inc., 22 FASHRC
21 (Jan. 31, 2000). If it is found that Congress has not addressed the question at issue, “the court
does not simply impose its own construction on the statute... Rather, if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842-843.

Examining the Mine Act, as well as relevant legislative history, I find that Congress has
directly spoken to the precise question at issue. Though the definition of a “mine” under the
Mine Act is broad and was intended to be read expansively, it was not intended to be limitless.

11


Secretary Motion for Partial Summary Decision, a-12° Respondent’s Motion for Summary
Decision, 1-3; Secretary’s Motion for Summary Decision, 4-5. In addition to the stipulated facts,
the parties each submitted exhibits.

Summary Decision Standard

The Court may grant summary decision where the “entire record...shows: (1) That there
is no genuine issue as to any material fact; and (2) That the moving party is entitled to summary
decision as a matter of law.” 29 C.F.R. § 2700.67(b); see also UMWA, Local 2368 y. Jim Walter
Res., Inc., 24 FMSHRC 797, 799 (July 2002); Energy West Mining, 17 FMSHRC 1313, 1316
(Aug. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), which interpreted
Fed.R.Civ.P. 56). The Commission has analogized its Rule 67 to Federal Rule of Civil
Procedure 56, which authorizes summary judgments upon a proper showing of a lack of a
genuine, triable issue of material fact. Hanson Aggregates New York, Inc.,29 FMSHRC 4, 9
(Jan. 2007). A material fact is “a fact that is significant or essential to the issue or matter at
hand.” Black's Law Dictionary (9th ed. 2009, fact). “There is a genuine issue of material fact if
the nonmoving party has produced evidence such that a reasonable factfinder could return a
verdict in its favor.” Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258, 1263
(11th Cir. 2007) (citation omitted). The court must evaluate the evidence “in the light most
favorable to ... the party opposing the motion.” Hanson Aggregates, 29 FMSHRC at 9. Any
inferences drawn “from the underlying facts contained in [the] materials [supporting the motion]
must be viewed in the light most favorable to the party opposing the motion.” /d. Though the
moving party bears the initial burden of informing the court of the basis for its motion, it is not
required to negate the nonmoving party’s claims. Celotex, 477 U.S. at 323. “When the moving
party has carried its burden under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.... Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue
for trial.’” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted).

Analysis

This case concerns the limits of MSHA jurisdiction, and like many jurisdictional cases, it
raises difficult, often novel issues, driven by the precise facts of the case. As Judge Manning has
eloquently stated, “Jurisdictional issues under the Mine Act are often factually complex. The
Commission and various federal circuit courts have wrestled with these issues... Whether
MSHA has jurisdiction under the specific facts at issue here will be one of the key issues in these
cases.” Cox Transportation Corp., 22 FMSHRC 568, 569-70 (April 5, 2000) (ALJ). The case is

° References to the Secretary of Labor’s exhibits are designated as “SX.” References to
Respondent’s exhibits are designated “RX.” References to the Secretary’s Motion for Partial
Summary Decision are designated “SB” followed by the page number. References to the
Secretary’s Reply Brief are designated “SRB” followed by the page number. References to the
Respondent’s Memorandum of Law in Support of Motion for Summary Decision are designated
“RB” followed by the page number. References to Respondent’s Reply Brief are designated
“RRB” followed by the page number.


13.

14.

15.

16.

17.

18.

maintenance facility on a 24-hour, 6 day a week basis. Right Hand Fork Road
dead ends on the other side of the KC Transport facility. The road into the K
C Transport facility is not a coal haulage road but does branch off from a
haulage road.

K C Transport shares the parking area for its maintenance facility with a
logging company. Ramaco Resources has no personnel or equipment at the
facility.

K C Transport operates both on-road and off-road trucks out of this facility.
The off-road trucks provide haulage for five (5) nearby Ramaco Resources’
mines. The on-road trucks provide earth haulage services for AEP, gravel
haulage services to other customers and coal haulage services for customers
other than Ramaco Resources.

KC Transport asserts that about 60% of the services from this K C facility are
to the five (5) nearby Ramaco Resource mines, including the 3 deep mines, a
strip mine and a highwall mine. The other 40% of K C Transport’s work from
this location is to provide services for companies other than Ramaco
Resources, including American Electric Power (“AEP”) and other coal
operators. For example, for the past 4-5 months, K C Transport has been
working on a large earth moving project for AEP and the trucks working on
this project are parked and maintained at the Emmett shop. Although the
Secretary has no knowledge of these facts, the Secretary does not dispute the
company’s assertions.

This facility provides a convenient centralized maintenance facility in Logan
County for KC Transport.

Representatives of Ramaco told K C Transport they could use the area where
the trucks referenced in Citation Nos. 9222038 and 9222040 were located for
a maintenance facility and assured K C Transport that this area was not on
permitted, bonded mine property, so Ramaco would not be operating there.
The Secretary has no evidence that K C Transports’ facility is on permitted,
bonded mine property. Ramaco Resources has no plans to operate a coal mine
at the location where K C Transport maintains its maintenance area/shop. K C
Transport uses the property for purposes of maintaining a portion of its track
fleet, including those trucks servicing the Ramaco Resources mines and
customers other than Ramaco Resources.

The haul trucks cited in Citation Nos. 9222038 and 9222040 were owned by
K C Transport and were located at KC Transport’s Emmett, West Virginia
maintenance facility when cited. The haul trucks referenced in Citation Nos.
9222038 and 9222040 were regularly used to haul coal from the five Ramaco
mines to the Elk Creek prep plant at the time of the citations.


location but rather by its function -- that is, whether it is used in extracting or preparing coal.” Id.
at Note 11.

In MSHA v. W.J. Bokus Industries, Inc., the Commission found that gas cylinders kept in
a garage adjacent to an asphalt plant and beside an office used by the mine were under MSHA
jurisdiction. 16 FMSHRC 704 (April 1994). The garage was regularly used by miners on mining-
related tasks. Id. at 708. In W.J. Bokus, it was unclear whether the ALJ found the garage itself to
be under MSHA jurisdiction, but the Secretary’s position appeared to be that the equipment in
the garage was under MSHA jurisdiction because the garage was under MSHA jurisdiction
(“The Secretary assert[ed] that the judge ‘accepted that MSHA had jurisdiction over the garage.’
He infers that the judge would not have examined jurisdiction over items in the garage unless he
assumed that MSHA had jurisdiction over the garage itself.” 16 FMSHRC at 707, FN 9).
However, in reversing the ALJ, the Commission made clear that “we need not reach the issue
raised by the Secretary, that the garage was a ‘structure’ or ‘facility’ used in mining and,
therefore, a ‘mine’ within the meaning of section 3(h)(1) of the Mine Act.” Id. at 708.

In MSHA v. Justis Supply & Machine Shop, the Commission relied on Jim Walter
Resources to conclude that an off-site dragline assembly site was a mine under the Act. 22
FMSHRC 1292 (Nov. 2000). The Commission found that the dragline was equipment “to be
used in” mining coal, and the site and employees at the site were devoted to building the dragline
that would be used at the mine. Therefore, the dragline assembly site was a mine under the Act.

In MSHA v. State of Alaska, Dept. of Transp., the Commission held that a SAG Screener,
a mobile piece of equipment that excavated material at pits along a gravel road and which had its
own MSHA Mine ID, was a mine under the Act. 36 FMSHRC 2642 (Oct. 2014). The
Commission examined Subsections (A) and (C) in conjunction and held that even though the
dedicated right-of-way may not fall under the definition of “private ways and roads” in
Subsection (B), it was a piece of equipment used in a mining area.

In MSHA v. Austin Powder, ALJ Andrews rejected the Respondent’s arguments that
because an off-site storage facility was “not employed in” mining at the quarry, it was not a
“mine.” 37 FMSHRC 1337, 1349 (June 8, 2015). He found that the storage facility was used to
store explosives and related materials used in mining, and was therefore a “facility” under the
Act. Id. at 1352. Similarly, In MSHA v. Youngquist Brothers Rock, Inc., ALJ Gill found that
MSHA had jurisdiction to cite a truck that may have been on a section of the mine property
where a restaurant was located. 36 FMSHRC 2492 (Sept. 19, 2014) (ALJ). Judge Gill’s analysis
focused on the location of the truck when it was cited and he found jurisdiction specifically
because it was on an area that fell under the definition of a “mine.” Further relevant to the instant
case, in Youngquist MSHA’s position was that if the truck been outside the mine gates, MSHA
would not have had jurisdiction over it.'? Id. at 2496. In MSHA v. Jeppesen Gravel, ALJ Melick

'2 MSHA has stated this position in several cases. In MSHA v. Drillex, Inc., the inspector “further
confirmed that his enforcement jurisdiction over the respondent is limited to any trucks actually
found on quarry or mine properties, and that in the instant case, he inspected the truck after it
was driven onto the mine site in question.” 9 FMSHRC 1972, 1975 (Nov. 24, 1987).

15


reason it was rejecting the Commission’s decision in Maxxim Rebuild, it rejected the
Commission’s decision in Jim Walter Resources. Id. at 744. Throughout the decision, the Court
expressed dismay that the Secretary’s position provided no natural limits. It emphasized that
“The Secretary’s interpretation also has no stopping point,” Id. at 743, and that the definition’s
“locational focus” provides such a limit. Jd. at 742.

This is not the only instance of a judge expressing that MSHA’s jurisdiction, while broad,
must have limits. In Bush & Burchett, Inc. v. Reich, the Sixth Circuit rejected the argument that
any road appurtenant to a mine was within MSHA’s jurisdiction, stating:

Not only does the statute not compel such a reading, but also such a reading is
contrary to common sense. Without some limitation on the meaning of “roads
appurtenant to,” MSHA jurisdiction could conceivably extend to unfathomable
lengths since any road appurtenant to a mine that connects to the outside world
would necessarily run into yet other roads, thus becoming one contiguous road.
Because of the potential reach of MSHA jurisdiction if the definition in §
802(h)(1)(B) is left unfettered, “private ways and roads” cannot simply mean “any
road.” Otherwise, there could conceivably be no limit to MSHA jurisdiction, a
result Congress clearly did not intend.

117 F.3d 932, 937 (6th Cir. 1997). Similarly, Dilip K. Paul v. P.B — K.B.B., Inc., the Commission
held that an engineering office that was responsible for designing an exploratory shaft, as well as
providing personnel, equipment, and materials, was not a mine under the Act. 7 FMSHRC 1784
(Nov. 21, 1985). The Commission stated that “while we have recognized that the definition of
‘coal or other mine’ provided in section 3(h) of the Mine Act is expansive and is to be interpreted
broadly, the inclusive nature of the Act’s coverage is not without bounds.” Jd. at 1787 (citations
omitted). '°

Analyzing this jurisdictional map that arises through a review of the outer bounds of the
Mine Act’s definition of a “mine,” the facility and equipment at issue here falls squarely within
the definition. The off-site maintenance facility and trucks at issue here are much like the central
supply shop at issue in Jim Walter Resources, the gas cylinders at issue in W.J. Bokus, the off-
site dragline assembly site at issue in Justis Supply & Machine Shop, the off-site Screener at
issue in State of Alaska Department of Transportation, the off-site storage facility at issue in

stand alone for the proposition that off-site facilities and equipment are under MSHA
jurisdiction. Rather, it is but one of many cases over decades of jurisprudence analyzing Mine
Act jurisdiction.

'S In MSHA v. Ammon Enterprises, ALJ Zielinski discussed in dicta the question of whether
MSHA would have jurisdiction over trucks loading mined materials that were stockpiled and
separated by a screen, calling it a “gray area.” 2008 WL 4190445 at Note 9 (July 10, 2008)
(ALJ). He further stated that if the mining operations had been closed, “that the loading

of trucks from the stockpiles would not be considered within MSHA''s jurisdiction.” Id.


. After completing his activities at the Elk Creek Prep Plant on March 11, 2019,
CMI Smith traveled more than a mile up the hollow along the haul-road and
then turned off the haul-road at Right Hand Fork Road and followed Right
Hand Fork Road across a creek about 1000 feet to a location where K C
Transport had constructed a parking area with two maintenance shipping
containers. K C Transport purchased the gravel and stone for the parking lot
and constructed the parking area. K C Transport also has commercial
insurance to cover this facility.

. Inspector Smith traveled up the haul-road and Right Hand Fork Road because
he was looking for trucks to issue terminations for previously issued citations.
When he reached K.C. Transport’s maintenance lot, he observed the trucks
cited in Citation Nos. 9222038 and 9222040.

. At the time of the citations, K C Transport was in the process of constructing a
new maintenance shop at that location. The construction materials for a
planned approximately 60’ x 70’ metal building for the new maintenance shop
had arrived at the site but were staged on pallets and the metal building had
not yet been constructed. The parking area for the planned maintenance shop
had been constructed and K C was using two shipping containers and two
service trucks for its maintenance needs.

. KC Transport is an independent trucking company which provides hauling
services to various businesses, including coal hauling, earth hauling and
gravel hauling.

. KC Transport provides coal hauling services to various coal mine operators,
including, but not limited to Ramaco Resources.

. KC Transport operates truck maintenance and storage facilities at five (5)
locations, including one at Bluefield West Virginia, one at Taz[e]well,
Virginia, two at Princeton, West Virginia, one at Man, West Virginia and the
one at issue in this proceeding in Emmett, West Virginia.

10. The new K C Transport maintenance area is located on Right Hand Fork

Road, which is a road off the haulage road, which runs past the Elk Creek
Plant operated by Ramaco Resources. It is located approximately 1000 feet
from the haulage road.

11. The K C Transport maintenance facility is more than a mile up the hollow

from the Elk Creek Plant. The Elk Creek Preparation Plant is the nearest coal
extraction/preparation facility to K C Transport’s maintenance facility.

12. There is a gate at the entrance to the K C Transport facility on Right Hand

Fork Road and there is no other way into the hollow where it is located. At
the time Citation Nos. 9222038 and 9222040 were issued, the gate was in
need of repair and was not operational. KC Transport usually operates this


Both citations were issued for conditions of trucks owned by Respondent that were in the
parking area of K C Transport’s truck maintenance facility in Emmett, West Virginia (the
“Emmett facility” or “maintenance facility”) at the time the citations were issued. The
Respondent is challenging Mine Act jurisdiction over the Emmett facility and the trucks parked
therein. The parties have stipulated that should this Court find that MSHA had jurisdiction over
the trucks and location, the cited conditions would constitute violations of 30 C.F.R. § 77.404(c),
that both violations were abated in good faith, that the gravity findings are accurate, and that the
negligence for each citation should be modified from moderate to low. The parties further
stipulated that the appropriate penalty amount for Citation No. 9222038 would be $3,908.00 and
the appropriate penalty amount for Citation No. 9222040 would be $4,343.00. Accordingly, the
only matter before this Court is a jurisdictional question.

For the following reasons, I grant the Secretary’s Motion for Summary Decision and
deny the Respondent’s Motion for Summary Decision.

Undisputed Facts

The parties in this case have worked diligently in creating a detailed list of joint
stipulations.’ They are as follows:

1. The Administrative Law Judge and the Federal Mine Safety and Health
Review Commission have jurisdiction to hear and decide civil penalty
proceedings pursuant to Section 105 of the Federal Mine Safety and Health
Act of 1977.

2. On March 11, 2019, MSHA Coal Mine Inspector John M Smith was
conducting inspection activities at the Elk Creek Prep Plant, Mine ID 46-
02444.

3. The Elk Creek Prep Plant is owned and operated by Ramaco Resources, LLC.
(“Ramaco Resources”).

(b) Machinery and equipment shall be operated only by persons trained in the use
of and authorized to operate such machinery or equipment.

(c) Repairs or maintenance shall not be performed on machinery until the power
is off and the machinery is blocked against motion, except where machinery
motion is necessary to make adjustments.

(d) Machinery shall not be lubricated while in motion where a hazard exists,
unless equipped with extended fittings or cups.

30 C.F.R. § 77.404.

‘Joint Stipulations will be designated by JS 7 followed by the stipulation number.


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.

30 U.S.C. § 802(h)(1). Because the controversy in this case concerns whether either the
maintenance facility and/or the trucks could constitute a “mine,” it is clear that subsection (A)
concerning land, and subsection (B) concerning private ways and roads, are not at issue.!°
Specifically, it is the portion of subsection (C) that mentions “structures, facilities, equipment,
machines, tools...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 milling of such minerals,
or the work of preparing coal or other minerals,” that the Secretary argues provides jurisdiction
over the trucks. SB at 13.

When analyzing the definition of “mine” under the Act, one must not be “governed by
ordinary English usage,” but rather by the broad definition and intent that Congress set forth.
Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1551 (D.C. Cir. 1984). The Commission has
repeatedly emphasized that “The definition of a ‘coal or other mine’ in section 3(h) of
the Mine Act is broad, sweeping and expansive.” MSHA v. KenAmerican Resources, Inc., 42
FMSHRC 1, 6 note 12 (Jan. 16, 2020); Jim Walter Resources, 22 FMSHRC at 24; MSHA v.
Justis Supply & Machine Shop, 22 FMSHRC 1292, 1296 (Nov. 03, 2000). This description was
based on the congressional intent of the Mine Act. The Senate Report accompanying the Mine
Act states that “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 possibl[e] interpretation.” Donovan v. Carolina
Stalite Co., 734 F.2d 1547, 1554-55 (D.C. Cir. 1984) (quoting S. Rep. No. 461, 95th Cong., Ist
Sess. 37 (1977), U.S. Code Cong. & Admin. News 1977, 3401, 3414). “Close jurisdictional
questions are to ‘be resolved in favor of inclusion of a facility within the coverage of the Act.’ Id.

Following this directive to interpret the definition of a mine broadly, ALJs, the
Commission, and Federal Courts of Appeal have found a broad variety of lands, roads,
structures, facilities, and equipment to constitute a mine. Combined these provide a general
framework for the breadth and limits of MSHA jurisdiction, as well as the appropriate analysis to
determine jurisdiction.

In Marshall v. Stoudt’s Ferry Preparation Co., the Third Circuit held that a preparation
plant that separated low-grade fuel from sand and gravel dredged from a riverbed was a mine.
602 F.2d 589 (ie Cir. 1979). Analyzing the Act’s use of the words, “structure” and “facility,” the
Court stated that “although it may seem incongruous to apply the label ‘mine’ to the kind of
plant operated by Stoudt's Ferry, the statute makes clear that the concept that was to be conveyed

'0 Tn National Cement Co. of Ca. Inc., the Secretary took the position that Section 3(h)(1)(B)
covers roads, but not vehicles on those roads. 573 F.3d 788, 794-796 (D.C. Cir. 2009).

13


held that a Caterpillar front end loader was under the Mine Act’s jurisdiction when it was being
used to load gravel in a private way or road appurtenant to the area where the gravel was
extracted. 32 FMSHRC 1749 (Nov. 18, 2010) (ALJ). In MSHA v. Northern Illinois Service Co.,
ALJ Gill held that MSHA had jurisdiction over a service truck and its contents when that truck
was on mine premises, even if it was also used at non-mine locations. 36 FMSHRC 2811 (Nov.
10, 2014) (ALJ).

More recently, ALJ Simonton held that a parking lot and office that were located on mine
property and adjacent to the plant’s active extraction sites was a mine under the Act. MSHA v.
Rain for Rent, 40 FMSHRC 1267, 1271 (Aug. 22, 2018). The Judge emphasized that the
“parking lot is on Natividad Plant property, adjacent to active extraction sites, and used for mine-
related purposes.” Jd. at 1272. In finding jurisdiction, Judge Simonton concluded that the “office
and parking lot are thus geographically and functionally related to the mining process at
Natividad Plant and are subject to MSHA jurisdiction under the Act.” Jd.

In MSHA v. Maxxim Rebuild Co., the Commission held that an off-site maintenance shop
that was used primarily to maintain, repair, and fabricate equipment used in the mining process
was a mine under the Act. 38 FMSHRC 605 (April 2016). However, this decision was reversed
by the Sixth Circuit, in a sweeping decision that rejected Jim Walter Resources and much of the
Commission’s reasoning on jurisdiction. Maxxim Rebuild Co. v. FMSHRC, 848 F.3d 737, 740
(e* Cir. 2017). In looking at the three subsections in the definition of a “mine,” the Court
emphasized, “Location, location, location: All three definitions are place connected and place
driven.” Id. at 742. The Sixth Circuit held that MSHA jurisdiction “extends only to such facilities
and equipment if they are in or adjacent to—in essence part of—a working mine.”"? Id. at 740.
Since the maintenance shop was not attached to or adjacent to a working mine, it did not fall
under the Act’s definition of a mine. Jd. at 742. With regards to equipment, the Court held that
such equipment’s use in mining is not dispositive of MSHA jurisdiction. “It does not cover
mining ‘equipment’ or for that matter mining ‘machines, tools, or other property’ wherever they
may be found or made.” Id. at 740.'4 In reaching its conclusion, the Court stated that for the same

'3 Similarly, in MSHA v. Pickett Mining Group, ALJ Rae found that MSHA lacked jurisdiction
over a Ford tractor. 36 FMSHRC 2444 (Sept. 8, 2014) (ALJ). Judge Rae’s analysis looked at the
location of the tractor and its use. She found that there was no evidence that the tractor has been
or will be used in mining activities, and that at the time of citation the tractor was not located at
any location that could be deemed part of an extraction area.

'4 While the Respondent uses the Sixth Circuit position to advance its argument, the Secretary
uses the Commission decision to advance its argument. RB at 10-12; SB at 14. The Secretary
argues that not only is the Sixth Circuit’s reversal of the Commission in Maxxim Rebuild not
binding precedent in this case, which arises out of the Fourth Circuit, but that “the lower
unanimous decision by the Commission affirming MSHA coverage is the applicable precedent
for this case.” SRB at 2. This Court questions the Secretary’s argument that a Circuit Court
reversal (without remand) only disturbs the Commission’s decision in the applicable Circuit.
Nonetheless, whether the Commission’s decision still governs ultimately has little bearing on the
instant decision. This is due to the fact that the Commission’s Maxxim Rebuild decision does not

16