**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

 

 
| SECRETARY OF LABOR

 MINE SAFETY AND HEALTH     

 ADMINISTRATION (MSHA),

                          Petitioner,

 

                        v.

 

K C TRANSPORT, INC.,

   Respondent.                                                         |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2019-458

A.C. No. 46-02444-487883 A8938

 

 

 

 

Mine: Elk Creek Plant |
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**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.[1]The parties settled 18 of the 20 citations included in this docket prior to themotions for summary decision.[2]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).[3]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.[4]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”).

4.      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. 

5.      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.

6.      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. 

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

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

9.      K C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 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. 

13.  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.

14.  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. 

15.  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.

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

17.  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 truck fleet, including thosetrucks servicing the Ramaco Resources mines and customers other than RamacoResources.

18.  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. 

19.  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. 

20.  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). 

21.  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.

22.  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. 

23.  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. 

24.  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. 

25.   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.

26.  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 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,[5]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. 

37.  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. 

38.  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.

39.  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.

40.  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.

41.  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. 

42.  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. 

43.  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. 

44.  Government Exhibit 3 is aphotograph depicting how the truck referenced in Citation No. 9222038 appearedat the time of inspection. 

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

Secretary Motion for Partial Summary Decision, 3-12.[6] 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 v. 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.” *Id.*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 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 ¶¶ 7, 8. It owns and operates fivemaintenance and storage facilities in Virginia and West Virginia. JS ¶ 9. Atissue here are trucks that were located in the Emmett, West Virginiamaintenance facility (hereinafter referred to as the “maintenance facility”).JS ¶¶ 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 ¶ 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 ¶ 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 ¶ 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).[7]JS ¶ 5; SX-1; SX-2. The mandatory 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 ¶ 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.”[8]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 “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.” *Id.* 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 FMSHRC 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. 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.[9]

 

 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, 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.[10]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., 1st 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 (3rd 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 by theword is much more encompassing than the usual meaning attributed to it[. T]heword means what the statute says it means.” *Id.* 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(4th Cir. 1981). The Court held that the broad definition of “mine”included “all of the facilities used at a coal preparation plant.” *Id.*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. *Id.* Lastly,the Secretary interpreted Subsection (C) to cover mining related vehiclestraveling on mining roads. *Id.* 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).[11]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 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.[12]*Id.* at 2496. In *MSHA v. Jeppesen Gravel*, ALJ Melick 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.” *Id.* 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.” *Id.*

 

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 (6th 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.”[13]*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. *Id.*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.[14]In reaching its conclusion, the Court stated that for the same 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. *Id.* 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.” *Id.* at 1787 (citations omitted).[15]

 

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 *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 ¶ 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 ¶ 15. These services includeoperating on-road and off-road trucks used in coal, gravel, and earth haulage.JS ¶ 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 FMSHRC 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.[16]

 

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.[17]

 

 

 

 

/s/John Kent Lewis

                                                            JohnKent Lewis

                                                                        AdministrativeLaw Judge

 

 

Distribution:

 

Robert S. Wilson, Esq., U.S. Dept. of Labor, 201 12th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, 4th Floor, P.O. Box 2548,Charleston, WV 25329

----

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

 

[2]A Decision Approving Partial Settlement was issued on December 19, 2019.

 

[3]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.

(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.

 

[4]Joint Stipulations will be designated by JS ¶ followed by the stipulationnumber.

[5]The parties erroneously listed this citation as 9222038. 

[6]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. 

[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 to a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 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.

 

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

[9]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 ¶ 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.

 

[10]In *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).

 

[11]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).

 

[12]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).

[13]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. 

 

[14]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 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. 

 

[15]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.*

 

[16]Judge 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.

[17]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