FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR ) BEFORE THE COMMISSION 

MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) Docket No. WEVA 2019-0458 

 ) 

 Petitioner, ) A.C. No. 46-02444-487883 

 ) 

v. ) Contractor No. A8938 

) 

K C TRANSPORT, INC. ) 

 ) Mine: Elk Creek Plant 

 Respondent. ) 

 ) 

K C TRANSPORT, INC.’s 

PETITION FOR DISCRETIONARY REVIEW 

K C Transport, Inc. (“K C Transport”), hereby petitions the Federal Mine Safety and Health 

Review Commission (“Commission”), pursuant to Section 113(d)(2)(A)(ii) of the Federal Mine 

Safety and Health Act of 1977, as amended (“Mine Act”), 30 U.S.C. § 823(d)(2)(A)(ii), and 29 

C.F.R. §2700.70(c), for review of Administrative Law Judge John Kent Lewis’ (“ALJ”) March 3, 

2020 Order Denying Respondent’s Motion for Summary Decision and Granting Secretary’s 

Motion for Summary Decision ("Decision”) as to Citation Nos. 9222038 and 9222040, both for 

alleged violations of 30 C.F.R. § 77.404(c). 

I. WHY THE COMMISSION SHOULD REVIEW THE ALJ’S DECISION. 

The ALJ’s Decision on Citation Nos. 9222038 and 9222040 (for violations of 30 C.F.R. § 

77.404(c)) raises substantial issues of law related to jurisdiction and when an ALJ may deviate 

from the relief requested by the Secretary and issue a declaratory judgment. The ALJ committed 

legal error and the ALJ’s errors of law are likely to be repeated in the absence of review by the 

Commission. 
2 

For background, this proceeding involves two citations, each alleging violations of 30 

C.F.R. § 77.404(c), issued to K C Transport by MSHA Inspector John M. Smith (“Inspector 

Smith”) on March 11, 2019 on two trucks parked in a parking lot area used by K.C. Transport. K 

C Transport’s maintenance facility was located off bonded property near Ramaco Resource LLC’s 

Elk Creek plant (“Ramaco”). (Decision, p. 2; Stip. No. 3.) In addition to the Elk Creek plant, 

Ramaco also owns and operates five (5) mining operations in the vicinity of K C Transport’s 

Emmett facility that are routinely inspected by MSHA; including, three deep mines, one surface 

mine and one highwall miner. (Stip. No. 14). Each of these facilities provided ample opportunities 

for MSHA to inspect K C Transport’s trucks without the need to leave the mine and follow the 

trucks to K C Transport’s maintenance facility. 

The K C Transport maintenance facility serves multiple mining and non-mining operations. 

At the time of the citations, the area was a parking lot with maintenance trailers. K C Transport 

shared the parking lot with a logging company. The area where the trucks were cited would later 

(after the citations were issued) become a parking lot for K C Transport’s new 60’ x 70’ 

maintenance facility (Stip. No. 3.). The area was a mile from the Elk Creek coal preparation plant 

(“Elk Creek plant”) in Emmett, West Virginia. (Decision, p. 3; Stip. Nos. 2, 3, 4, and Exhibit A to 

Stipulations) Here, the ALJ declared that MSHA had jurisdiction not just over the two cited 

trucks, but even over K C Transport’s entire new 60’ x 70’ maintenance facility which did not 

even exist at the time of the citations. Decision, p. 12. 

An initial fundamental problem with the ALJ’s decision is that it significantly expanded 

the jurisdictional request of the Secretary, without prior notice to Respondent. MSHA’s Motion 

for Summary Judgment specifically sought only to obtain jurisdiction over the two cited trucks. 
3 

The Secretary made no request for jurisdiction over the Emmett maintenance facility, including 

the unbuilt (at the time) maintenance facility. In this regard, the Secretary argued: “the only issue 

in dispute concerning the citations is whether the trucks are subject to MSHA coverage.” 

Secretary’s Motion, p. 1. The Secretary’s motion concluded: “the Secretary respectfully requests 

that the Court find that the trucks referenced in Citation Nos. 9222038 and 9222040 were subject 

to Mine Act coverage.” Secretary’s Motion, p. 20. Even the ALJ acknowledged that the Secretary 

only sought jurisdiction over the trucks. Decision, p. 10. 

In response to the Secretary’s limited request, the ALJ first concluded “MSHA cannot 

simply attach jurisdiction to the trucks and follow them wherever they may drive.” Decision, p. 

12. Then, after agreeing with the Respondent on this dispositive point, the ALJ decided to depart 

from the relief requested by the Secretary and issue an advisory declaratory judgment 

(notwithstanding that the Secretary did not petition for this), holding that MSHA had the authority 

to regulate K C Transport’s entire Emmett maintenance facility, a facility which maintains trucks, 

including those not used in mining activities. 

Ironically, under the guise of purportedly limiting jurisdiction, the ALJ greatly expanded

the jurisdiction sought by the Secretary. The ALJ stated that the relief the Secretary sought was 

far too broad noting: “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.” Then, while purporting to limit jurisdiction, 

the ALJ issued an un-petitioned for declaratory judgment, without prior notice to K C Transport, 

and gave the Secretary far more relief than it requested, holding “the Mine Act clearly defines a 
4 

mine in a manner that includes, under the facts of this case, both the maintenance facility and the 

equipment (or trucks) therein.” Decision, p. 12. 

This decision by the ALJ constitutes an unannounced declaratory judgment and affects K 

C Transport’s 60’ x 70’ maintenance facility which did not even exist at the time of the citations, 

where there was no case or controversy before the Court. The only citations before the court were 

those involving the two trucks. When the citations were issued, the trucks were serviced from 

trailers at K C Transport’s Emmett maintenance site. Now, the trucks are serviced by a 60’ x 70’ 

full service garage that services trucks performing many types of work other than mining.1 Yet, 

the ALJ has basically found that MSHA had jurisdiction over this facility that did not even exist 

at the time of the citations. The ALJ even ordered MSHA that it had an obligation to conduct 

semi-annual inspections of the facility. Decision, n. 9. This is a clear case of judicial overreach 

which should be rejected and vacated by the Commission. 

This case does not meet the requirements for a declaratory judgment decision. In this 

regard, the Commission has held that “for any grant of Commission declaratory relief, the 

complainant must show that there is an actual, not moot, controversy under the Mine Act between 

the parties, that the issue as to which relief is sought is ripe for adjudication, and that the threat of 

injury to the complainant is real, not speculative. See generally, Mid-Continent Resources, Inc., 

12 FMSHRC 949, 954 (May 1990); 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law § 

46.03 (1988). In this case, the Secretary filed no Complaint seeking declaratory judgment. The 

Secretary only asked for jurisdiction to inspect the trucks. Further, there was no actual and ripe 

controversy as to whether MSHA could regulate the entire Emmett maintenance facility including 

1

 Approximately 40% of the trucking was for businesses other than Ramaco’s five mines. Decision, 4. 
5 

the then unbuilt 60’ x 70’ facility before the Court since MSHA’s position was that it only wanted 

to regulate the trucks in the parking lot. 

K C Transport had no notice that MSHA was even requesting a declaratory judgment to 

expand jurisdiction to the entire 60’ x 70’ maintenance facility.2 How could K C Transport predict 

that the Court would transform the Secretary’s stated intention that all it wanted was to regulate 

was the trucks into an Order that henceforth the entire Emmett maintenance facility should be 

inspected every six months? This unexpected sleight of hand by the ALJ is fundamentally unfair 

to K C Transport should be rejected. 

If the Commission affirms the ALJ’s Decision, this is the first time that an ALJ has declared 

jurisdiction to exist over a facility that did not yet exist at the time of the Citations. This abuse of 

discretion takes MSHA jurisdictional disputes to a new level of advisory jurisdiction. The 

Commission should reject this unwarranted overreach. 

Aside from the unwarranted expansion of unrequested jurisdiction, the ALJ committed 

clear legal error in holding that the citations should be affirmed pursuant to Section 3(h)(1)(C) (30 

U.S.C. § 802(h)(1)(C)) of the Mine Act. In this regard, the ALJ specifically limited his decision 

to 3(h)(1)( C) of the Mine Act: “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.” Decision, p. 11.3

2

 In fact, prior to these two citations, MSHA had specifically disclaimed jurisdictional interest over similar K C 

Transport maintenance trailers or the parking areas adjacent to them and had vacated citations related to a trailer and 

parking lot. (Decision, p. 5; Stipulation No. 22). At the same time MSHA vacated the two earlier citations, K C 

Transport paid citations for any trucks located on the haul road. After those earlier citations, K C Transport moved 

its maintenance area 1000’ away from the haul road and bonded property. Until the two citations at issue, MSHA 

never cited K C Transports trucks unless they were on the haul road or at the mines. 

3

 Similarly, the Secretary contended: 
6 

It is clear that the trucks are not “equipment, machines, tools...used in, or to be used in, or 

resulting from, the work of extracting such minerals from their natural deposits” at a mine. This 

definition must necessarily have some context. Here, the context is provided by the land where 

minerals are extracted and processed under Subsection A.4 A broad interpretation of Subsection 

C was soundly rejected by the Sixth Circuit in Maxxim Rebuild Co., LLC. v. FMSHRC, 848 F.3d 

737, 444 (6th Cir. 2017) (“Once [MSHA] tries to extend its jurisdiction to off-site shops and offsite equipment, the language of the statute provides no stopping point, leaving the scope of its 

jurisdiction to the whims of the Secretary.”)(emphasis added). K C Transport’s maintenance 

facility and the area where the trucks were cited was the epitome of an off-site shop and the trucks 

are the epitome of off-site equipment. For these reasons, the ALJ’s Decision should be reversed. 

II. STATEMENT OF PERTINENT FACTS 

K C Transport is an independent trucking company that provides various types of hauling 

services to its customers; including, coal hauling, earth hauling and gravel hauling services. 

Decision, p. 4; Stip. Nos. 7, 14. K C Transport provides its hauling services to a wide array of 

customers, including, but not limited to the Ramaco owned mines near the Emmett facility. Id., 

Stip. No. 8. To service and maintain its large truck fleet, K C Transport owns and operates 

maintenance and storage facilities at five (5) locations in two different states. K C Transport 

[I]t 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, 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. Decision, p. 13, citing Secretary’s Brief. 

4

 The Secretary agrees that Subsection (A) refers specifically to the “extraction” area. Secretary v. National Cement 

Co. of Cal, Inc., 573 F.3d 788 (2009). Logically, Subsection C refers to the facilities, equipment, machines and tools 

at the extraction/preparation point. 
7 

maintains one facility in Tazewell, Virginia; one facility in Bluefield, West Virginia; one facility 

in Man, West Virginia; two facilities in Princeton, West Virginia; and the facility at issue here, in 

Emmett, West Virginia. Decision, p. 3; Stip. No. 9. 

K C Transport elected to construct the Emmett facility to serve as a convenient and 

centralized location for the maintenance, repair and staging of its truck fleet that provides hauling 

services to customers located in that area of Logan and Wyoming counties. Stip. Nos. 16. K C 

Transport solely purchased all the materials for the construction of the Emmett facility and insures 

the property. Decision, p. 3; Stip. No. 4. Overall, K C Transport operates approximately thirtyfive (35) trucks from the Emmett facility consisting of both on and off-road trucks. Decision, p. 6; 

Stip. No. 30. The off-road trucks provide coal hauling services to the five (5) nearby Ramaco 

owned mines and to other nearby mines owned by different operators. Decision, p. 4; Stip. Nos. 

14, 15. The on-road trucks provide earth and gravel hauling services to other, non-coal mining 

customers in the area, including AEP. Decision, p. 4; Stip. Nos. 14, 15. 

The land where K C Transport’s Emmett facility is located it is not permitted or bonded 

for mining. Decision, p. 5; Stip. No. 17. Ramaco has no personnel or equipment at this location. 

Decision, p. 4; Stip. No. 13. Nor is it used by Ramaco for mining operations. Stip. No. 18. Further, 

Ramaco has no plans to operate any mine at or near the location of the where K C Transport’s 

Emmett facility is located. Decision, p. 4; Stip. No. 18. The Emmett facility is across a creek from 

the haulage road and well up a hollow along Right-Hand Fork Road, which branches off from the 

main haulage road running by the Elk Creek Plant.5

 Decision, p. 5; Stip. No. 25. It is located more 

5

 See “Elk Creek Operations Area Map” attached to K C Transport’s Motion for Summary Judgment Exhibit A 

attached to the Stipulations. Decision, p. 5. The parties agreed that this map accurately depicts the location of K C 

Transport’s Emmett maintenance area and the nearest mine, which is the Elk Creek Preparation Plant. 
8 

than one (1) mile from the Elk Creek Plant (i.e. the nearest coal extraction/preparation facility), 

approximately four (4) to five (5) miles from the three Ramaco deep mines, approximately six (6) 

miles from the Ramaco strip mine/highwall miner and is on the other side of a creek, approximately 

1000’ away from the haulage road. The property is not bonded by the State of West Virginia. 

Decision, p. 5; Stip. No. 17. 

On the day the citations were issued, the materials for K C Transport’s planned 60’ x 70’ 

metal maintenance building, were on location but were temporarily stored on pallets awaiting 

construction. Decision, p. 3; Stip. No. 6. However, the adjacent truck parking lot (where the trucks 

referenced in Citation Nos. 9222038 and 9222040 were located) had already been completed and 

the area was being actively used by K C Transport and an unaffiliated logging company to park 

their logging trucks. Decision, p. 3, 4; Stip. Nos. 6, 13. At the time, K C Transport had two 

shipping containers there and two maintenance trucks which it used to maintain its trucks. 

Decision, p. 5; Stip. No. 23. Prior to March 11, 2019, MSHA had never previously attempted to 

enter K C Transport’s Emmett facility parking lot. Decision, p. 5; Stip. No. 21. Similarly, MSHA 

has not cited any trucks at this facility since Citation Nos. 9222038 and 9222040 were issued. Id.

With the exception of these two citations, MSHA has shown no interest in inspecting this area. 

Previously, on April 3, 2018, MSHA issued Citation Nos. 9174394 and 9174395 to K C 

Transport on a work trailer and a muddy parking area that was located on bonded, permitted 

property, directly adjacent to where the main haulage road intersects with Right-Hand Fork Road. 

Decision, p. 5, Stip. No. 22. In April of 2018, K C Transport was utilizing this area for its truck 

fleet prior to the re-locating the facility off the bonded, permitted mine and up a hollow where 

there was no mining taking place. Id. The area cited in April was adjacent to the haulage road. Id.
9 

Notably, MSHA ultimately vacated these citations. Id. Despite the vacatur, that incident was a 

factor which lead to K C Transport’s decision to construct a new facility distinctly separated from 

the haulage road in an attempt to make it clear that the K C Transport maintenance facility was 

separate from the mine. Id. 

With respect to the citations at issue, Inspector Smith was conducting inspection activities 

at the Elk Creek plant and then attempted to locate the trucks to terminate a previously issued 

citation. Stip. No. 5. To locate the trucks, he traveled more than one mile along the haulage road 

past the Elk Creek plant, turned off of the haulage road, crossed the creek and traveled up RightHand Fork Road through an opened gate to where the Emmett facility is located. Stip. Nos. 5, 24. 

Upon arrival, Inspector Smith discovered maintenance work being performed on two K C 

Transport’s trucks in the Emmett facility parking lot and issued Citation Nos. 9222038 and 

9222040. Decision p. 3; Stip. No. 5. 

While the two cited trucks are routinely inspected by MSHA when performing hauling 

services to the nearby Ramaco mines and the Elk Creek plant, they were never inspected at this K 

C Transport maintenance facility location before or after the citations. Decision, p. 5; Stip. No. 21. 

K C Transport contends that the trucks are not within MSHA jurisdiction and not subject to 

inspection while parked at the Emmett facility because the facility is not a “coal or other mine” as 

defined in Subsection C the Mine Act. 

III. ASSIGNMENTS OF ERROR 

 K C Transport asserts the following substantial errors of law, policy, discretion and/or 

sufficiency of the evidence in this case: 
10 

A. The ALJ erred as a matter of law in issuing a declaratory judgment that the entire K C 

Transport Emmett maintenance facility was subject to jurisdiction when the Secretary 

only requested a finding of jurisdiction over the two cited trucks. 

 

B. The ALJ erred as a matter of law in finding that the two cited trucks were subject to 

MSHA jurisdiction pursuant to Section 3(h)(1)(C) of the Mine Act. 

 

IV. ARGUMENTS CONCERNING ASSIGNMENTS OF ERROR. 

A. The ALJ erred as a matter of law in issuing a declaratory judgment that the 

entire K C Transport Emmett maintenance facility was subject to jurisdiction 

when the Secretary only requested a finding of jurisdiction related to the two 

cited trucks. 

In this case, the ALJ Denied Respondent’s Motion for Summary Judgment and granted the 

Secretary’s Motion for Summary Judgment. Decision, p. 1. The ALJ set the stage for legal error 

at the beginning of the Decision when he stated broadly that “Respondent is challenging Mine Act 

jurisdiction over the Emmett facility and the trucks parked therein.” Decision, p.1. Of course, 

Respondent did not contest any violation at its maintenance trailers of the unbuilt Emmett 

maintenance facility, because none was issued there. Respondent only contested the citations 

issued on two trucks sitting in a parking lot being used by K C Transport.6

 

The Secretary should not receive more relief than what it sought through the citations and 

its Motion for Summary Judgment. The ALJ impermissibly used a limited contest for the two 

citations at issue to broadly declare that MSHA had jurisdiction over the entire Emmett 

maintenance facility, including the portion which did not exist at the time of the citations. 

By going beyond the Secretary’s requested relief, the ALJ effectively issued an “advisory 

opinion/declaratory judgment” notwithstanding that such relief was not requested and 

6

 The ALJ misinterpreted the import of Respondent’s analysis related to the facility. Respondent’s analysis and 

argument related to its facility was offered for the sole purpose of contesting the truck-related citations before the 

Court and for no other reason. Legal arguments to defend against specific violations are not an invitation to alter the 

case or controversy before the Court. 
11 

notwithstanding that K C Transport had no prior notice that the ALJ would broaden the scope of 

the dispute so broadly. This was legal error. 

In Pocahontas Coal Company, LLC, 38 FMSHRC 176, 180–81 (2016), the Commission 

declined to review POV notices and described the limited ways that a dispute gets before the 

Commission: 

Several provisions of the Mine Act grant subject matter jurisdiction to the 

Commission by establishing specific enforcement and contest proceedings and 

other forms of action over which the Commission presides: e.g., section 105(d), 30 

U.S.C § 815(d), provides for the contest of citations or orders, or the contest of 

civil penalties proposed for such violations; section 105(b)(2), 30 U.S.C. § 

815(b)(2), provides for applications for temporary relief from orders issued 

pursuant to section 104; section 107(e), 30 U.S.C. § 817(e), provides for contests 

of imminent danger orders of withdrawal; section 105(c), *181 30 U.S.C. § 815(c), 

provides for complaints of discrimination; and section 111, 30 U.S.C. § 821, 

provides for complaints for compensation. Id.

None of these methods allow the Court to freelance and broadly declare jurisdiction over 

K C Transport’s entire Emmett Maintenance facility. The citations at issue were on two trucks 

sitting in a parking lot. There was no citation issued for the maintenance trailers or K C Transport’s 

60’x 70’ facility. As noted, MSHA did not even ask for this relief. See Decision, p. 5; Stipulation 

No. 22. Thus, the ALJ had no case or controversy from which he could order that MSHA had 

jurisdiction over the entire facility. There was no justiciable dispute. 

In Mid-Continent Resources, 12 FMSHRC 949, 955 (1990), the Commission held: 

federal courts, in applying the federal Declaratory Judgment Act, 28 U.S.C. § 2201 

and Fed. R. Civ. P. 57, which implements that Act, may grant declaratory relief 

only in the context of actual “cases and controversies.” This requirement is imposed 

by Article III, Section 2 of the federal Constitution and by the Declaratory 

Judgment Act itself. See generally 10A Wright & Miller § 2757; 6A Moore's Pars. 

57-11--57-13. Among other things, the Article III “case or controversy” 

requirement weighs against use of the declaratory process to issue advisory 

opinions or to resolve abstract or hypothetical problems. E.g., Maryland Casualty 

Co. v. Pacific Coal & Iron Co., 312 U.S. 270, 272-73, 85 L.Ed. 826, 828-29 (1941). 
12 

In Mid-Continent, MSHA cited the operator for a violation of the alleged “walk-around” 

rights of a miner. Prior to the administrative hearing, the Secretary determined the miner was not 

a designated miner’s representative and moved to dismiss the proceeding. Mid-Continent opposed 

and asked for a declaratory judgment. The ALJ denied the request on the grounds there was no 

pending “case of controversy.” Id. at 953, 955. There are very good reasons why Courts do not 

act until there is a controversy before them. Primarily it is based on Article III, Section 2 of the 

federal Constitution.7

 

The final problem with the ALJ’s decision is that there was no “requesting party” seeking 

a declaratory judgment. The law is clear that before a declaratory judgment may issue in an 

appropriate case, a party must first request it. e,g, Pocahontas Coal Company, supra

(Commissioner Althen, concurring), note 4. 

Applying the declaratory judgment rules to this matter, it was wholly inappropriate for the 

ALJ to grant relief (declaration of jurisdiction over the entire Emmett facility) beyond the scope 

of the actual citations before the Court and well beyond what the Secretary requested. Such 

judicial overreach should be rejected. 

B. The ALJ erred as a matter of law in finding that the two cited trucks were 

subject to MSHA jurisdiction pursuant to Section 3(h)(1)(C) of the Mine Act. 

The ALJ began his discussion of jurisdiction by asserting that jurisdictional issues are 

“difficult” and “complex,” Decision, p. 8, but rapidly transitioned his conclusion that this case was 

not difficult or complex at all. Really, the only complex parts of the ALJ’s Decision were his 

7

 While the Court in Mid-Continent did note that “declaratory relief” is sometimes available if the requesting party 

establishes “a substantial likelihood of recurrence of the claimed enforcement harm or the imminence of repeated 

injury.” Id. at 956; in this case, the likelihood of a reoccurrence is small since MSHA has indicated that it does not 

intend to inspect the facility, only the trucks in the parking lot and has vacated earlier similar citations. 
13 

efforts to explain away the Secretary’s position, distinguish Maxxim Rebuild Co., LLC. v. 

FMSHRC, 848 F.3d 737, 444 (6th Cir. 2017) from this case and issue an unrequested declaratory 

judgment in order to find jurisdiction.8

The ALJ and the Secretary rely solely on Subsection (C) of Section 3(h)(1) of the Mine 

Act to reach the conclusion that the two trucks are subject to jurisdiction under the Mine Act. The 

Secretary argued that the two cited trucks, as mobile equipment, are a “coal or other mine.” See, 

Secretary’s Motion, pp. 12-14, emphasizing the terms “equipment, machines” in Subsection (C). 

Secretary’s Brief, p. 12. The Secretary asserted that “[t]his definition...includes things like 

equipment, machines and tools that are used in the mining process.” Secretary’s Brief, p. 13. The 

Secretary concluded that the “trucks...are equipment that were used in the extraction and 

preparation of coal.” Secretary’s Brief, 14. 

The Secretary and the ALJ clearly misinterpreted Subsection (C) of Section 3(h)(1) 

because Subsection (C) necessarily refers to equipment and machines at the mine, not outside of 

the mine. Otherwise, there is no limit to the Secretary’s jurisdiction. Recognizing the Secretary’s 

error, the ALJ took a different approach. He rejected the Secretary’s contention that the trucks, as 

equipment, are a “mine,” calling it absurd. Decision, p. 11. The ALJ then went even further than 

the Secretary and declared K C Transport’s maintenance facility itself (presumably including the 

independent trucking company garage, the logging trucks, the gravel trucks, the earth moving 

trucks and the mechanics for these non-mining endeavors) a “mine” under Section 3(h)(1)(C) 

8

 The Court stated: 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. Decision, p. 8 (emphasis added). Missing from this is one of the parties 

arguing for jurisdiction over the maintenance facility, because neither party did. Lacking an advocate for such a 

position the ALJ became one. 
14 

reasoning that “the trucks were used in mining and parked at the facility, they constituted 

"equipment" under the same section.” Id. Interestingly, the ALJ specifically rejected the 

Secretary’s construct, for which it sought Chevron deference (that any vehicle “used in the mining 

process” is a “rolling mine.”) Id. Then the ALJ created his own interpretation, not supported by 

Chevron, which is equally tenuous as it includes all manner of non-mining activities which just 

happen to occur somewhere near a mine. How is one approach “absurd” and the other not? The 

ALJ essentially determined that an independent trucking company’s garage is a “mine.” 

The ALJ’s rejection of the Secretary’s approach necessarily means that the ALJ must apply 

the statute as it is written. In other words, the ALJ cannot reject the interpretation of the Secretary 

in Chevron and then create and resolve a new ambiguity. The ALJ has only two choices: Defer 

to the Secretary under Chevron or apply the Statute as written. The ALJ rejected the former option, 

leaving only the latter option. In applying the statute as written, the ALJ must be guided by what 

the statute says and not what the ALJ thinks it means. Here, the ALJ erred in his interpretation of 

Section 3(h)(1)(C) of the Mine Act. 

Section 4 of the Mine Act states that its provisions, and the corresponding regulations 

promulgated by the Secretary, apply to each “coal or other mine ...[.]” 30 U.S.C. § 803. (emphasis 

added). Conversely, the Mine Act does not apply to an area that is not a “coal or other mine.” K 

C Transport’s maintenance facility is not a mine. It is a facility owned and operated by an 

independent trucking company to provide maintenance for haulage services to both mining and 

non-mining activities. 9

9

 If this maintenance garage is a mine, what is the Mine I.D. number assigned to it? Does it need a separate number? 

The ALJ’s Decision certainly lacks this information. 
15 

The terms “coal or other mine” are defined in Section 3(h)(1) of the Mine Act, in relevant 

part (as limited by the ALJ) 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, 

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) (emphasis added). 

Thus, MSHA jurisdiction extends only to those areas that satisfy the statutory criteria. 

Although Congress intended the definition of what constitutes a “coal or other mine” for purposes 

of Mine Act jurisdiction to be broad, it is not limitless. In fact, courts have commented on the ease 

of jurisdictional overreach under such a broadly worded statutory provision without appropriate 

judicial oversight. See Maxxim Rebuild Co., 848 F.3d at 444 (“Once [MSHA] tries to extend its 

jurisdiction to off-site shops and off-site equipment, the language of the statute provides no 

stopping point, leaving the scope of its jurisdiction to the whims of the Secretary.”)(emphasis 

added); see also Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 937 (6th Cir. 1997) (“Without some 

limitation on the meaning of [Section 3(h)(1)] MSHA jurisdiction could conceivably extend to 

unfathomable lengths ... a result Congress clearly did not intend.”)(emphasis added). 

In this case, the ALJ has applied this definition and deemed an independent trucking 

company a mine even though the trucking company purposefully set up its operation away from 

the bonded and permitted area so that it could conduct its trucking business without being deemed 

a mine. Both courts and administrative adjudicative bodies have found several instances where 
16 

MSHA lacked jurisdiction over similar facilities and equipment, despite the Mine Act’s broad 

coverage. See e.g. Maxxim Rebuild, supra; Herman v. Associated Electric Cooperative, Inc., 172 

F.3d 1078 (8th Cir. 1999); Bush & Burchett, Inc., 117 F.3d at 937; Lancashire Coal Co. v. MSHA, 

968 F.2d 388 (3rd Cir. 1992); U.S. Dep’t of Labor v. Ziegler Coal Co., 853 F.2d 529 (7th Cir. 

1988); Oliver M. Elam, Jr. Co., 4 FMSHRC 5 (Jan. 1982); Powder River Coal, LLC, 29 FMSHRC 

650 (July 2007)(ALJ Manning); Hobet Mining Co., 26 FMSHRC 890 (Nov. 2004)(ALJ Feldman). 

In Maxxim Rebuild, the Court analyzed Subsection (C) of 30 U.S.C. § 802(h)(1) and 

recognized the problems with extending jurisdiction to mining equipment repair facilities. The 

Court required a determination of location of the proposed enforcement in relation to an active 

mine. The Court of Appeals in Maxxim Rebuild made it clear that Subsection (C) does not 

authorize MSHA to follow equipment used in mining anywhere it might be located and issue a 

citation. The caution of Maxxim Rebuild is even more appropriate when dealing with an 

independent trucking company which repairs trucks for both mining and non-mining activities and 

shares a parking lot with a logging company. 

MSHA only has jurisdiction under the Mine Act over facilities and equipment that are in 

or actually at the location of a working mine. See Id., 848 F.3d at 740. In Maxxim Rebuild, MSHA 

issued citations at a mining equipment repair shop owned by a subsidiary of a large coal company, 

Maxxim Rebuild Company, LLC, and located adjacent to a sealed and abandoned mine also owned 

by the same parent company, Alpha Natural Resources (“Alpha”).10 Id. at 739. (emphasis added). 

Approximately 75% of the work performed at the shop was on equipment to be used by Alpha at 

10 Maxxim Rebuild Company, LLC, the operator of the Sidney shop, was a wholly owned subsidiary of Alpha Natural 

Resources. Id., 848 F.3d at 739. 
17 

its mining operations. Id. (emphasis added).11 Additionally, Alpha owned the property where the 

repair shop was located and maintained an office on the top floor of the shop. Id. Here, an 

independent trucking Company, unaffiliated with Ramaco, owned the trucks and shop. The shop 

was located off the permitted property of any Ramaco mine. The shop in Maxxim Rebuild was 

one of six similar independent repair shops operated by Maxxim and was the only shop that MSHA 

had asserted jurisdiction over. Id. at 744. Here, K C Transport has several repair shops, but MSHA 

has never sought to exercise jurisdiction over any of them, including the Emmitt facility. 

Maxxim challenged MSHA’s authority to issue the citations for lack of jurisdiction over 

the repair shop. Id. The Secretary argued that the Mine Act granted MSHA jurisdiction over “any 

facility that makes or repairs equipment that is used in coal extraction or preparation activities.” 

Id. at 740 (emphasis added). An administrative law judge (“ALJ”) agreed with the Secretary’s 

interpretation and ruled that the shop was “a coal or other mine” within MSHA jurisdiction and 

the Commission affirmed the ALJ’s ruling. Id. at 739. Maxxim petitioned the Sixth Circuit Court 

of Appeals for review of the Commission’s decision. Id. The Sixth Circuit reversed the 

Commission and held that the shop was not a “coal or other mine,” as defined by the Mine Act. 

The court reasoned that the term “coal or other mine” in the Mine Act is “locational” and relates 

to things “in or connected to a mine.” Id. at 740. While acknowledging the breadth of the Mine 

Act’s definition of “coal or other mine,” the court posited that the definition extends only to those 

things that are in or connected to a working mine and does not cover “machines, tools, or other 

property wherever they may be found or made.” Id. (emphasis added). 

11 Here, only 60% of the work performed by the shop supported Ramaco’s five different nearby mines. 
18 

 The Sixth Circuit in Maxxim made clear that the issue of whether equipment was or could 

be used in coal extraction and/or preparation activities is largely irrelevant to the analysis. The 

location of the Emmett facility clearly demonstrates that it is not a part of any particular mine and 

the ALJ did not identify any of the five mines where it was located. As clearly depicted in 

Respondent’s Exhibit A to Stipulations, the Emmett facility is set off from permitted, bonded mine 

property in a hollow where no mining activity occurs. The facility is located more than one mile 

from the Elk Creek plant and between four and six miles from any other active underground or 

surface mine. There is a haulage road is on the other side of a creek, approximately 1000’ feet 

away at its nearest point, from the facility. Ramaco does not use the area where the facility is 

located for any purpose and has no plans to conduct any mining activity near the facility in the 

future. K C Transport shares the parking area with a logging company, whose trucks MSHA never 

seeks to inspect. 

Here, K C Transport’s Emmett maintenance facility, like the shop at issue in Maxxim 

Rebuild, is not “in or connected to” a mine. It is near a mine, much like a local service station at 

the foot of the hollow. While the cited trucks were used at some time in the process of hauling 

coal from active mines to the Elk Creek plant, the trucks were not being used for that purpose at 

the time the citations were issued. Rather, they were being maintained at K C Transport’s 

maintenance area which was located away from the permitted and bonded mine area. At that time, 

the trucks were co-mingled with other trucks which K C Transport uses to haul coal for other 

operators, as well as dirt and gravel for other customers away from Ramaco’s several mines. To 

be clear, K C Transport does not contend that MSHA has no jurisdiction over its trucks when 

hauling coal on permitted and bonded mine property. Rather, K C Transport contends that MSHA 
19 

has no jurisdiction over its trucks while they are being maintained, repaired and parked at K C 

Transport’s Emmett facility. 

K C Transport’s Emmett facility had never been inspected prior to March 11, 2019 and K 

C Transport immediately challenged MSHA’s jurisdiction here. Notably, MSHA has not inspected 

this area since the citations were issued. K C Transport even challenged MSHA’s jurisdiction over 

another area where it parked its trucks prior to the construction of the Emmett parking lot and 

MSHA ultimately vacated those citations. Therefore, under the circumstances of this case, 

Subsection (C) of 30 U.S.C. § 802(h)(1) does not confer jurisdiction on K C Transport’s 

maintenance area. 

As noted supra, Subsection (C) of 30 U.S.C. § 802(h)(1) is not freestanding. It derives its 

context from the location of these activities at a mine under Subsection (A), which relates to the 

“extraction” area. See, Secretary v. National Cement Co. of Cal, Inc., 573 F.3d 788 (2009). 

Logically, Subsection (C) refers to the facilities, equipment, machines and tools at the 

extraction/preparation point. In Maxxim Rebuild, the Sixth Circuit similarly held: 

Far better, it seems to us, to stand by the text and context of § 802(h)(1), which 

limit the agency’s jurisdiction to locations and equipment that are part of or adjacent 

to extraction, milling, and preparation sites. Id. (emphasis added). Id., 848 F.3d at 

744. 

The Maxxim Rebuild Court also noted: 

The definition [Section 802(h)(1)(C)] 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. It does not cover mining “equipment” 

or for that matter mining “machines, tools, or other property” wherever they may 

be found or made. Id. (emphasis added). 
20 

Clearly, the context of the location of the equipment is crucial and the context of 

Subdivision (C) necessarily relates back to Subsection (A) as it must, to avoid being limitless.12 

In support of his Decision, the ALJ cites to several cases including Jim Walter Resources, 

22 FMSHRC 21 (January 31, 2000). Principally, the cases are used to support the ALJ’s 

contention that the definition of “structures, facilities, [and] equipment” should be interpreted as 

broadly as possible. See, Decision, pp. 12, 13, 14 (examples of the points adopted by the ALJ 

from these cases include: 1) “When analyzing the definition of "mine" under the Act, one must not 

be "governed by ordinary English usage;” 2) “The definition of a 'coal or other mine' in section 

3(h) of the Mine Act is broad, sweeping and expansive,” 3) “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;” and 4) “Close jurisdictional questions are to 'be resolved in favor of inclusion of a 

facility within the coverage of the Act.”) (citations omitted). Of course, repeating such talismanic 

admonitions does not help the reviewing Court determine if the facility is a “mine.” 

The ALJ also provides examples of structures and facilities which have been deemed to be 

mines. E.g. a preparation plant. Marshall v. Stoudt 's Ferry Preparation Co., 602 F.2d 589 (3rd 

Cir. 1979); a car-dropping facility at a preparation plant. Harman Min. Corp. v. FMSHRC, 671 

F.2d 794 (4th Cir. 1981); a private road leading to a plant. National Cement Co. of Ca. Inc., 573 

F.3d 788 (D.C. Cir. 2009); a central supply shop. MSHA v. Jim Walter Resources, Inc., 22 

1230 U.S.C. § 802(h)(2) provides further evidence that Subsection (C) (structures, facilities, machinery, tools and 

equipment) is contextually related to Subsection (A) (land where minerals are extracted). In this regard, Section 

802(h)(2) provides: 

For purposes of subchapters II, III, and IV, “coal mine” means an area of land and all structures, 

facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real 

or personal, placed upon, under, or above the surface of such land by any person, used in, or to be 

used in, or resulting from, the work of extracting. (emphasis added). 
21 

FMSHRC 21 (Jan. 2000); a garage used by miners adjacent to an asphalt plant. MSHA v. W.J. 

Bokus Industries, Inc., 16 FMSHRC 704 (April 1994); a drag line assembly site. MSHA v. Justis 

Supply & Machine Shop, 22 FMSHRC 1292 (Nov. 2000); and, a mobile gravel pit. MSHA v. State 

of Alaska, Dept. of Transp., 36 FMSHRC 2642 (Oct. 2014). Of course, these facilities were “in 

or connected to a mine” and were operated by the mine so they are different. Also, some of these 

cases rely on Jim Walter Resources, 22 FMSHRC 21 (January 31, 2000). 

It is important that the reasoning of Jim Walter Resources, 22 FMSHRC 21 (January 31, 

2000) has been called into question in Maxxim, where the Sixth Circuit held: 

[T]he Secretary leans heavily on another decision of the Commission: Secretary of 

Labor, Mine Safety & Health 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 glasses, nails, conveyor belts, belt structures, oil filters, and other 

supplies exclusively for the use of the shop’s parent company, was a “coal or other 

mine.” We disagree. For the same reasons we reject the Commission’s decision 

here, we reject Jim Walters as well. Id. 848 F.3d at 744. (emphasis added). 

The Court understandably reasoned: 

Once the agency tries to extend its jurisdiction to off-site shops and off-site 

equipment, the language of the statute provides no stopping point, leaving the scope 

of its jurisdiction to the whims of the Secretary. Id.

The ALJ also relies of a series of ALJ decisions with no precedential value and which 

involve different facts. E.g., an explosive storage magazine, MSHA v. Austin Powder, 37 FMSHRC 

1337, 1349 (June 8, 2015) (ALJ); a truck at a restaurant inside a mine gate. MSHA v. Youngquist 

Brothers Rock, Inc., 36 FMSHRC 2492 (Sept. 19, 2014) (ALJ); a loader operating on a public road 

at a mine. MSHA v. Jeppesen Gravel, (Nov. 18, 2010) (ALJ); a truck located at the mine. MSHA 

v. Northern Illinois Service Co., 36 FMSHRC 2811 (Nov. 10, 2014); and, a truck at the mine 
22 

office. MSHA v. Rain for Rent, 40 FMSHRC 1267, 1271 (Aug. 22, 2018).13 

The cases upon which the ALJ relied share common denominators which are not present 

here. First, these cases involve equipment actually “in or connected to the mine.” Second, in all 

those cases, MSHA was asking the court to find jurisdiction over a particular facility or piece of 

equipment. The ALJ did so sua sponte as to K C Transport’s facility here. Third, with the 

exception of Rain for Rent, many of these cases pre-dated Maxxim.14

Here, the K C Transport facility was not adjacent to Ramaco Resources five extraction or 

preparation sites. It was “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. It was also 1000 feet from the 

haul road. 

Like the Secretary, the ALJ inexplicably cites to the Commission’s interpretation of 

Section 3(h)(1) in MSHA v. Maxxim Rebuild Co., 38 FMSHRC 605 (April 2016). However, the 

Commission’s holding in that case (relied on by the Secretary and the ALJ here) was flatly rejected 

by the Sixth Circuit Court of Appeals in Maxxim 

MSHA is precluded from exercising jurisdiction over the Emmett Facility by the plain 

language of Section 3(h)(1)(C) because this area was not in or connected to an 

13 Interestingly, in a footnote, the ALJ cites to MSHA v. Drillex, Inc., where the ALJ found that “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). The fact that the Inspector waited until the truck was at the mine would support K C Transport’s position. 

Perhaps that is why it is relegated to a footnote. 

14 In Rain for Rent, the cited truck in that case was located at a parking lot which is connected to the main mine office. 

Id., 40 FMSHRC at 1271. At the office, the mine operator “directed mine operations” and it was “adjacent to the 

plant’s active extraction site.” Id. Here, the cited trucks were not located in the parking lot of the main mine office. 

Rather, the trucks were located over a mile from the nearest coal extraction/preparation site. 
23 

extraction/preparation point as defined in Subdivision (A). K C Transport urges the Commission 

to find that the trucks were not a “mine” and were not at a “mine” when the citations were written. 

For this reason, the citations should be vacated. 

V. CONCLUSION 

For the reasons set forth herein, K C Transport respectfully requests that the Commission 

grant this Petition and reverse the ALJ’s Decision as to Citation Nos. 9222038 and 9222040, and 

find that MSHA did not have jurisdiction over the trucks where cited and that the ALJ went too 

far in approving jurisdiction over a facility which was not built at the time of the Citations. 

K C TRANSPORT, INC. 

By Counsel: 

/s/ James P. McHugh 

Christopher D. Pence, Esq. 

James P. McHugh, Esq. 

Hardy Pence PLLC 

10 Hale Street, 4th Floor 

Charleston, WV 25329 

Phone: (304) 345-7250 

Fax: (304) 553-7227 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR ) BEFORE THE COMMISSION 

MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) Docket No. WEVA 2019-0458 

 ) 

 Petitioner, ) A.C. No. 46-02444-487883 

 ) 

v. ) Contractor No. A8938 

) 

K C TRANSPORT, INC. ) 

 ) Mine: Elk Creek Plant 

 Respondent. ) 

 ) 

CERTIFICATE OF SERVICE 

I, James P. McHugh, hereby certify that a true and exact copy of the foregoing “K C 

Transport, Inc.’s Petition for Discretionary Review” was served by electronic mail on the 2nd day 

of April 2020, to the following: 

Robert S. Wilson, Esquire 

U.S. Department of Labor, Office of the Solicitor 

201 12th Street South 

Arlington, VA 22202-5450 

wilson.robert.s@dol.gov 

Stephen S. Adkins 

Conference Litigation Representative 

U.S. Department of Labor 

Mine Safety and Health Administration 

4499 Appalachian Highway 

Pineville, WV 24874 

adkins.stephen@dol.gov

 

 /s/ James P. McHugh 

James P. McHugh, Esq.