Alexis M. Herman, Secretary of Labor; Department of Labor,

Appellees, v. Associated Electric Cooperative, Inc.,

Appellant.

No. 98-1876

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

1999 U.S. App. LEXIS 7699

April 20, 1999, Filed

PRIOR HISTORY: [*1]

Appeal from the United States District Court for the Eastern District of Missouri.

DISPOSITION: Reversed and remanded.

JUDGES: Before FAGG, HEANEY, and WOLLMAN, Circuit Judges. HEANEY, Circuit Judge, dissents.

OPINIONBY: WOLLMAN

OPINION:

WOLLMAN, Circuit Judge.

Associated Electric Cooperative, Inc. (Associated) appeals from the district court's order granting summary judgment in favor of the Secretary of Labor and permanently enjoining Associated from excluding inspectors of the Mine Safety and Health Administration (MSHA) from its power-generating facility. Because we conclude that Associated is not a "mine" within the meaning of the Federal Mine Safety and Health Act, 30 U.S.C. §§ 801-962 (Mine Act), we reverse.

I.

Associated operates the Thomas Hill Energy Center, a three-unit, coal-fired electric power generating facility in Randolph County, Missouri. The facility obtains its coal from two mines in the Powder River Basin in Wyoming. Before shipment, the mines crush the coal into pieces approximately 2.5 inches in size. The coal is then shipped to the facility by rail. Associated engages in various preparation activities before burning the coal for electricity. All coal passes through [*2] grates to sift out large debris and under magnets to remove scrap metal. For one generator unit, coal is crushed into powder with pulverizers. For the other two units, coal is broken into quarter-inch pieces with hammer mills. Associated also performs sampling to ensure that the coal complies with emission standards.

In September 1995, the federal Occupational Safety and Health Administration (OSHA) received a complaint about coal dust from an employee at the facility. An OSHA inspector visited the facility and took air samples. Subsequently, OSHA informed Associated that it was referring the matter to MSHA to determine which agency had jurisdiction to inspect the facility's coal processing operations. An MSHA inspector visited the facility in August 1996. MSHA informed Associated in March 1997 that it had jurisdiction over the coal processing activities, from the point where coal is unloaded from railroad cars until it is ready for combustion.

On June 23, 1997, an MSHA inspector attempted to complete a formal inspection of the facility's coal processing operations. Associated denied the inspector entrance to the facility. MSHA issued Associated a citation under section 813(a) of [*3] the Mine Act for refusing to allow the inspector entrance. Associated continued to deny MSHA entrance to the facility, whereupon the Secretary brought this suit to enjoin Associated from denying MSHA entrance.

After finding that it had subject matter jurisdiction to determine whether Associated is a "mine" within the meaning of the Mine Act, the district court found that Associated qualified as a mine because of its coal processing activities. The court then issued a permanent injunction requiring Associated to grant MSHA inspectors access to the facility.

II.

Initially, Associated claims that the district court did not have subject matter jurisdiction to determine its status as a "mine" under the Mine Act. Because the parties do not dispute the underlying facts, we review the court's determination of subject matter jurisdiction de novo. See United States v. Lawrence, 51 F.3d 150, 151-52 (8th Cir. 1995) (reviewing a determination of subject matter jurisdiction de novo); Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468, 470 (8th Cir. 1993) (same).

According to Associated, the Mine Act only confers federal jurisdiction in cases involving "'habitual' offenders [*4] of the regulatory scheme" of the Act. See Appellant's Br, at 8 (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209, 127 L. Ed. 2d 29, 114 S. Ct. 771 (1994)). Undoubtedly, the Mine Act confers federal jurisdiction when the Secretary believes that a mine operator "is engaged in a pattern of violation of the mandatory health or safety standards" of the Act. 30 U.S.C. § 818(a)(2). Associated overlooks the significance of section 818(a)(1), however, which provides for federal jurisdiction in many other cases, including when a mine operator "refuses to admit [MSHA] representatives to the . . . mine." Id. § 818(a)(1)(C).

The Supreme Court has recognized that the Mine Act confers federal jurisdiction when any triggering event under section 818(a)(1) occurs, See Donovan v. Dewey, 452 U.S. 594, 604-05, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981) (stating that section 818(a) would confer federal jurisdiction when a mine operator denies an MSHA inspector access to a facility). The Third Circuit has asserted subject matter jurisdiction in a case strikingly similar to the present one. In Marshall v. Stoudt's Ferry Preparation Co., an operator claimed that its facility [*5] was not a "mine" within the meaning of the Mine Act and denied entrance to an MSHA inspector. 602 F.2d 589, 590 (3d Cir. 1979). The Third Circuit held that the facility qualified as a mine under the Act and enjoined the operator from denying MSHA inspectors access to the facility. Id. at 592.

Interpreting the Mine Act to confer federal jurisdiction only when operators habitually violate the Act would render section 818(a)(1) nugatory. This would contradict fundamental principles of statutory construction. See United States v. Talley, 16 F.3d 972, 975-76 (8th Cir. 1994) (citing Moskal v. United States, 498 U.S. 103, 109-10, 112 L. Ed. 2d 449, 111 S. Ct. 461 (1990)) (holding that whenever possible, statutes should be construed to give effect to all of their clauses and words). Accordingly, we conclude that the district court had subject matter jurisdiction over this case under section 818(a)(1)(C).

III.

Associated also asserts that it is not a mine within the meaning of the Mine Act. We review the district court's construction of the term "mine" in the Act de novo. See United Energy Servs., Inc. v. Federal Mine Safety & Health Admin., 35 F.3d 971, 974 (4th Cir. [*6] 1994); Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 935-36 (6th Cir.), cert. denied, 139 L. Ed. 2d 12, 118 S. Ct. 46 (1997).

The Act provides:

"coal or other mine" means (A) an area of land from which minerals are extracted in nonliquid form . . ., (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 . . . used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits . . . [or 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). The Act goes on to define "the work of preparing coal" as "breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine." Id. § 802(i). The issue before us is whether a utility company that performs some of these tasks on previously processed coal is a mine [*7] under the Act.

In adopting the Mine Act, "Congress was plainly aware that the mining industry is among the most hazardous in the country." Dewey, 452 U.S. at 602. Therefore, it designed the Act to "improve the health and safety conditions in the Nation's underground and surface mines." Id. The statute expressly declares, "It is the purpose of this chapter . . . to protect the health and safety of the Nation's coal or other miners." 30 U.S.C. § 801(g). See also Thunder Basin, 510 U.S. at 209-10 (discussing Congress's purpose for adopting the Act).

To achieve these goals, Congress intended that "what is considered to be a mine and to be regulated under this Act be given the broadest possible interpretation." S. Rep. No. 95-181, at 14 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3414; see also Bush & Burchett, 117 F.3d at 936-37 (stating that the word "mine" should be construed broadly due to the remedial nature of the Act); RNS Servs., Inc. v. Secretary of Labor, 115 F.3d 182, 187 (3d Cir. 1997) (same); United Energy, 35 F.3d at 975 (same); Donovan v. Carolina Stalite Co., 236 U.S. App. D.C. 264, 734 F.2d 1547, 1553-54 (D.C. Cir. 1984) (same). The [*8] remedial nature of the Mine Act does not allow courts to extend its coverage without limit, however. "It is clear that every company whose business brings it into contact with minerals is not to be classified as a mine within the meaning of section [802](h)." Carolina Stalite, 734 F.2d at 1551; see also Pennsylvania Elec. Co. v. Federal Mine Safety & Health Review Comm'n, 969 F.2d 1501, 1510 (3d Cir. 1992) (Mansmann, Circuit Judge, dissenting).

In Old Dominion Power Co. v. Donovan, the Secretary attempted to assert MSHA jurisdiction over a utility that sold electricity to a mine and periodically entered mine property to read the meter. See 772 F.2d 92, 93-94 (4th Cir. 1985). The Fourth Circuit found no MSHA jurisdiction because Congress did not intend all independent contractors that work at a mine to be considered "mine operators" under the Act. Id. at 96-97. Similarly, in Bush & Burchett the Secretary asserted MSHA jurisdiction over a bridge that a mine built to accommodate its traffic on a state highway between the mine and a loading facility on a nearby river. See 117 F.3d at 933. The Sixth Circuit held that MSHA did not have jurisdiction over the [*9] bridge because it was dedicated to the state highway system for public use. According to the court, "without some limitation on the meaning of 'roads appurtenant to,' MSHA jurisdiction could conceivably extend to unfathomable lengths." Id. at 937.

Likewise, not all businesses that perform tasks listed under "the work of preparing coal" in section 802(i) can be considered mines. The Act was designed primarily to protect miners, not employees of coal purchasers such as electric utilities and steel mills. See Pennsylvania Electric, 969 at 1510 (Mansmann, Circuit Judge, dissenting) (quoting Secretary of Labor v. Pennsylvania Elec. Co., 11 FMSHRC 1875, 1889-90 (1989) (Doyle, Comm'r, dissenting)); see also S. Rep. No. 95-461, at 37 (1977) (stating that the Act was meant to regulate "mining activity"). Although Associated performs some coal processing operations listed in section 802(i), its employees are not "miners," even in the broadest sense of the word. "Inherent in the determination of whether an operation properly is classified as 'mining' is an inquiry not only into whether the operation performs one or more of the listed work activities, but also into the nature [*10] of the operation performing such activities." Secretary of Labor v. Elam, 4 FMSHRC 5, 7 (1982).

The Secretary relies on decisions of the Mine Safety and Health Review Commission that subject utilities to MSHA jurisdiction. Such decisions, while instructive, are not binding. Further, they can be distinguished from the present case. In Secretary of Labor v. United Energy, the Commission held that a utility located adjacent to a mine was itself operating as a mine because it maintained a conveyor system to transport coal refuse from the mine and performed all processing activities needed to make the refuse a marketable product. See 15 FMSHRC 2022, 2058 (1993). Similarly, in Pennsylvania Electric, the Commission subjected a utility to MSHA jurisdiction because it operated a conveyor that transported run-of-mine, or unprocessed, coal from a mine to a separately-owned custom coal preparation facility located on the utility's property. See 11 FMSHRC at 1880. In that case, the Secretary did not attempt to assert MSHA jurisdiction beyond the custom coal preparation facility. Id. at 1876. See also Secretary of Labor v. Alexander Bros., Inc., 4 FMSHRC 541, 545 (1982) [*11] (subjecting an operator to MSHA jurisdiction because it performed all processing tasks necessary to convert refuse into marketable coal); Secretary of Labor v. Westwood Energy Properties, 11 FMSHRC 2408, 2413-14 (1989) (same); Air Prods. & Chems., Inc. v. Secretary of Labor, 15 FMSHRC 2428, 2429-31 (1993) (same).

The Commission decisions subjecting utilities to MSHA jurisdiction thus fall into two categories: (1) where the utility maintains a presence at a mine to assist in transporting coal to its generating facility, and (2) where the utility performs all processing tasks necessary to convert coal refuse into a marketable product. Circuit court decisions subjecting utilities to MSHA jurisdiction can be similarly categorized. See RNS, 115 F.3d at 185 (utility performed all processing tasks on coal refuse); United Energy, 35 F.3d at 973 (utility maintained conveyor system at mine and processed coal waste into marketable coal); Pennsylvania Electric, 969 F.2d at 1503 (utility maintained conveyor system to transport run-of-mine coal from adjacent mines). In essence, after a mine delivers processed, marketable coal to a utility any further operations to prepare the [*12] coal for combustion are not subject to MSHA jurisdiction. See United Energy, 35 F.3d at 975 (holding that "delivery of coal to a consumer after it is processed usually does not fall under the coverage of the Mine Act").

In the present case, Associated purchased coal that was processed into a marketable form by the mine. n1 Associated did not participate in transporting the coal from the mine, nor were its processing activities necessary to make the coal marketable. Therefore, its coal-handling operations are more properly characterized as "manufacturing" than "mining." While MSHA may have expertise in regulating the hazards of coal dust, Congress designed the Mine Act primarily to protect miners. The Secretary cannot claim that Associated's employees are miners. If Congress wishes to expand the Act to cover consumers of coal such as utilities and steel mills, it is better suited to that task than this court. We simply hold that under the current version of the Mine Act, a utility that receives processed coal from a mine does not itself become a "mine" by further processing the coal for combustion.

n1 The mine sold its coal to approximately 50 industrial, commercial, and utility customers. See Stipulated Facts P 12, J.A. at 87.

[*13]

Associated's coal processing operations remain subject to OSHA jurisdiction. See 29 C.F.R. §§ 1910.269(a)(1)(i)(B)(1) (stating that OSHA regulations apply to coal-handling installations at utility companies), 1910.269(v)(11)(xii) (requiring utilities to eliminate or control coal dust). Indeed, in prior cases the Secretary has asserted that MSHA has a "policy of inspecting those areas of a power plant that involve the handling and processing of run-of-mine coal and of leaving to OSHA the inspection of those areas that involve the handling of previously processed coal." See Pennsylvania Electric, 11 FMSHRC at 1884, cited in Westwood, 11 FMSHRC at 2417. Extending MSHA jurisdiction to the coal-handling operations in the present case would result in needless confusion for utility workers about whether MSHA or OSHA regulations apply to their conduct. "Requiring electric utility employees suddenly to adhere to conflicting standards depending on their job location can only lead to danger, especially where work around high voltage is involved." Old Dominion, 772 F.2d at 99.

The judgment of the district court is reversed, and the case is remanded with instructions to dismiss [*14] the Secretary's request for preliminary and permanent injunctions.

DISSENTBY: HEANEY

DISSENT:

HEANEY, Circuit Judge, dissenting.

I agree that the district court had subject matter jurisdiction under § 818(a)(1)(C) but would join the Secretary of Labor and the district court in holding that Congress unambiguously conferred jurisdiction upon MSHA to ensure worker safety at coal-processing operations like those present at Thomas Hill. Accordingly, I respectfully dissent.

Associated receives approximately 83,000 tons of coal each week from two mines located in the Powder River Basin of Wyoming. The coal from these mines is crushed before shipment to a size such that the largest pieces of coal will pass through a 2 1/2 inch hole. No further crushing, sizing, or other preparation occurs.

When a train carrying coal arrives at Thomas Hill, it is directed to the Car Dumper Building where the coal is unloaded into hoppers one carload at a time. At the top of each hopper is a "grizzly," or grate, which removes large clumps of coal or other material that could block the hopper chutes. The coal travels by conveyor belt to the Sample Building, where it passes under magnets to remove scrap metal. [*15] Next, it travels by conveyor to Transfer House No. 3, and then to Transfer House No. 1, both of which also contain magnets.

At Transfer House No. 1, the coal is divided into two parts. Coal to be burned in Power Generating Units Nos. 1 and 2 moves by a series of conveyor belts to the Units Nos. 1 and 2 Track Hoppers, to ready piles, and then to the Units Nos. 1 and 2 Crusher House. The crusher house crushes the coal into the 1/4 inch pieces required for the Thomas Hill Units Nos. 1 and 2 Cyclone Boilers. After crushing, the coal is fed onto Conveyors Nos. 3A and 3B for transport to the Units Nos. 1 and 2 Plant Storage Silos located in the power generation building. Coal to be burned in Generating Unit No. 3 is transported by conveyor from Transfer House No. 1 to ready piles, and is then fed through coal crackers to break up large clumps of coal. Next, it travels by conveyor to Transfer House No. 2, where it passes under magnets and through a granulator (ring crusher) to reduce its diameter to 1 1/2 to 2 inches. Finally, the coal is dumped onto Conveyors Nos. 39 and 40 for transport to the Unit No. 3 Storage Silos in the power generation building. The coal for Unit No. 3 (a pulverized [*16] coal boiler) is ground to a powder in the power generation building.

In September 1995, the Kansas City OSHA office received a complaint from an Associated employee alleging exposure to health (inhalation) and safety (fire and explosion) hazards from the presence of coal dust in several of the coal-processing areas described above. After an onsite visit by an OSHA inspector revealed the extensive nature of the coal processing operations at the Thomas Hill facility, OSHA referred the matter to MSHA to assist in determining which agency had jurisdiction over the coal-processing operation. To resolve that question, a MSHA inspector visited Thomas Hill. The inspector submitted a report to the national MSHA office which, after receiving a legal opinion by the Office of the Solicitor, determined that MSHA had jurisdiction over all areas of the Thomas Hill facility having to do with coal, including unloading, storage, and preparation areas. This determination delineating their respective jurisdictions over the Thomas Hill operations was memorialized in a June 1997 document signed by an OSHA Regional Administrator and an MSHA district manager. Associated declined to meet with MSHA, notified [*17] MSHA that it disagreed with the jurisdictional determination, and refused to permit MSHA to inspect the Thomas Hill coal-processing operation.

On June 23, 1997, a MSHA inspector went to Thomas Hill to conduct an inspection but was denied entry. The inspector issued a citation to Associated for refusing to allow the inspection and, subsequently, an order was issued based on Associated's refusal to abate the original violation. On July 3, 1997, the Secretary filed this action in federal district court. On July 16, 1997, Associated contested MSHA's citation and order before the Federal Mine Safety and Health Review Commission (Commission). n2 In its February 18, 1998 decision, the district court noted that Associated's coal-handling activities as stipulated by the parties included "moving the coal by means of an extensive conveyor system, magnetically cleaning the coal to remove scrap metal, storing coal, and cracking and crushing coal to reduce its size," Herman v. Associated Elec. Corp., 994 F. Supp. 1147, 1154 (E.D. Mo. 1998). On this basis, the court concluded that "the areas from the point at which the coal is unloaded from the train cars to the locations where coal is dumped [*18] onto conveyors 3A, 3B, 39 and 40 for transport into the power generation building are within the statutory jurisdiction of the [MSHA]." Id. Accordingly, the district court entered summary judgment in favor of the Secretary, granting preliminary and permanent injunctions prohibiting Associated from refusing to permit MSHA inspections of the specified portions of the Thomas Hill.

n2 On April 10, 1998, a Commission ALJ issued a decision dismissing Associated's case based on the collateral estoppel effect of the district court's February 18, 1998 decision.

Initially, I believe that the Secretary's determination that MSHA has jurisdiction over the Thomas Hill coal-processing operation is entitled to judicial deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Even if our review is de novo, however, the Mine Act clearly applies to the Thomas Hill coal-processing operation. The Mine Act applies to "each coal or other mine, [*19] the products of which enter . . . or . . . affect commerce," 30 U.S.C. § 803 (1998). The Mine Act defines "coal or other mine" to include not only lands and equipment associated with the extraction of coal and other minerals, but also "lands . . . structures, facilities, equipment, machines, tools, or other property . . . used in, or to be used in . . . the work of preparing coal or other minerals, and includes custom coal preparation facilities." 30 U.S.C. § 802(h)(1)(C) (1998). Mine Act coverage is to be given the "broadest possible" scope, Pennsylvania Elec. Co. v. Federal Mine Safety & Health Review Comm'n, 969 F.2d 1501, 1503 (3d. Cir. 1992), and the statute "was intended to provide a 'sweeping definition' of the word 'mine,' encompassing much more than the usual meaning attributed to it." Bush & Burchett, Inc. v. Reich, 117 F.3d 932, 936 (6th Cir. 1997) (quoting Donovan v. Carolina Stalite Co., 236 U.S. App. D.C. 264, 734 F.2d 1547, 1551 (D.C. Cir. 1984)). The question before us, therefore, is whether Thomas Hill is a "facility . . . used in . . . the work of preparing coal," and/or whether it is a custom coal preparation facility. n3

n3 It is not clear whether this is a single inquiry. Because that determination does not affect my conclusion that the Mine Act applies to the Thomas Hill coal-processing operation, I do not differentiate between what may, in fact, be two separate inquiries.

[*20]

While the Mine Act does not define "custom coal preparation facility," it defines the "work of preparing coal" as "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine," 30 U.S.C. § 802(i) (1998). It is uncontested that Associated engages in most, if not all, of the activities enumerated in § 802(i). Accordingly, the Thomas Hill coal-processing operation falls under the plain meaning of § 802(i).

This conclusion is further supported by the legislative history of the Mine Act, The House Conference Report states:

Both the Senate bill and the House amendment broadly defined mine to include all underground or surface areas from which the mineral is extracted, and all surface facilities used in preparing or processing the minerals, as well as roads, structures, dams, impoundments, tailing ponds and like facilities related to the mining activity.

H.R. Conf. Rep. No. 95-655, at 38 (1977), reprinted in 1977 U.S.C.C.A.N. 3485, 3486 (emphasis added). The Senate Report acknowledges that "there [*21] may be a need to resolve jurisdictional conflicts," and in resolving this conflict, "what is considered to be a mine and to be regulated under this Act [should] be given the broadest possible interpretation, and . . . doubts [should] be resolved in favor of inclusion of a facility within the coverage of the Act." S. Rep. No. 95-181, at 14 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3414 (emphasis added). Moreover, the Act's definition provisions are to be construed broadly so as to effectuate the statutory purpose of preserving the safety of mining operations. To the extent that there is doubt as to whether the Mine Act applies to Thomas Hill's coal-processing operation, Congress has directed that all doubts be resolved in favor of finding MSHA jurisdiction.

The majority contends that the Mine Act does not apply for two reasons. First, the Mine Act was passed to protect "miners" and Associated's coal-processing employees are not miners. Second, the Thomas Hill coal-processing operation was more akin to "manufacturing" than "mining." Neither distinction is persuasive or even on point.

Certainly, Congress designed the Mine Act to protect the health of miners. Just as clearly, [*22] Congress gave a broad definition of the facilities to be covered by the act. Thus, just as we must construe broadly the definition of "mine," so must we broadly construe the meaning of "miner" to give effect to Congress' clear intent to protect workers from the unique dangers posed by working in substantial coal-processing operations.

While the majority does not provide a definition of "miner," I would define a miner as a worker engaged in substantial coal-processing activities enumerated in § 802(i). Under such a definition, Associated employees who engage in coal processing at Thomas Hill would be covered by the Mine Act. Quite obviously, MSHA has the expertise, experience, and equipment to guarantee the safety of workers who are involved in coal-processing operations like those present in this case. This expertise is made clear by the fact that OSHA referred the Thomas Hill investigation to MSHA. Moreover, MSHA's regulatory framework in areas such as coal dust standards; sampling procedures; respiratory equipment; and structural, equipment, mechanical, and electrical safety in coal-processing facilities is much more extensive than the OSHA regulatory framework set forth by the [*23] majority. See 30 C.F.R. §§ 70.100-70.305; 77.203-77.217; 77.400-77.411; 77.500-77.516 (1998).

In this light, the majority's reliance on Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985) is inapposite. In that case, the Fourth Circuit was asked to interpret the Mine Act's definition of "operator," defined by the statute to mean "any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine." 30 U.S.C. § 802(d) (1998). The issue in Old Dominion was whether a utility company that provided electricity to a mine, did not perform any maintenance at the mine's substation, including on the lines thereto, and whose actions were limited to installing equipment to measure voltage and amperage for its meter, maintaining the meter, and sending workers to the meter once a month and ensuring that the meter was functioning properly fell within this definition. See 772 F.2d at 93. The issue arose when a utility worker was injured. See id. After analyzing § 802(d), the Fourth Circuit determined that "Congress intended to include within the Mine Act's definition [*24] of 'operator' only those independent contractors who are involved in mine construction or extraction and who have a 'continuing presence' at the mine." Id. at 96. While we are not called upon to interpret § 802(d) in this case, insofar as there is an analogy, I agree with the Fourth Circuit that the extent to which an employee is involved in coal processing determines whether a particular employee is an intended beneficiary of Mine Act protection. n4 To that end, a meter reader is factually distinguishable from a coal-processor. Unlike Associated's coal-processing employees, the utility workers in Old Dominion were on the mine's premises for the limited purpose of checking a meter. Here, Associated's employees are engaged in substantial coal-processing operations that bring it within the plain language and express purpose of the Act's coverage.

n4 Similarly inapposite is the majority's reliance on Bush & Buchett, 117 F.3d at 932. The majority confuses the facts and claims that "the Secretary [of Labor] asserted MSHA jurisdiction over a bridge that a mine built to accommodate its traffic on a state highway between the mine and a loading facility on a nearby river." The issue in Bush & Burchett was whether the construction company that built the bridge was properly cited under OSHA regulations. See 117 F.3d at 933. While Bush & Burchett involved a question of MSHA jurisdiction over the construction site, the construction company, not the Secretary, argued that MSHA had jurisdiction. See id. In fact, both OSHA and MSHA determined that MSHA lacked jurisdiction. See id. at 935.

[*25]

The majority additionally asserts that utility workers will suffer confusion if the Mine Act were to apply to the Thomas Hill coal-processing operation. In its submissions to the district court, the Secretary of Labor included a 1979 Interagency Agreement between MSHA and OSHA. As part of the agreement, "MSHA and OSHA will endeavor to develop compatible safety and health standards, regulations, and policies with respect to the mutual goals of the two organizations including joint rulemaking, where appropriate. This interagency coordination may also include cooperative training, shared use of facilities, and technical assistance." (Ex. 9 at 5.) The Secretary of Labor also submitted to the district court 1995 OSHA guidelines for enforcing 29 C.F.R. § 1910.269:

The requirements in 1910.269 are intended to apply to conditions and installations for which MSHA does not in fact "exercise statutory authority. . . ." MSHA's jurisdiction relative to power generation plants covers the processing of coal prior to final transport of the coal into the power generation building (where the coal is burned). Processing includes activities such as mixing, breaking, crushing, sizing, washing, [*26] and mechanically assisted drying. The location of these activities whether on or off the property owned or leased by the power generation company is not an issue.

(Ex. 10 at 7.) This interagency agreement eliminates any confusion that might have existed without it.

The majority also misses the point by attempting to characterize the Thomas Hill coal-processing operation as manufacturing. By its terms, the Mine Act applies to the Thomas Hill coal-processing operation if Associated engages in "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine." 30 U.S.C. § 802(i) (1998). In employing a functional analysis of the Thomas Hill coal-processing operation, the dispositive issue cannot be a matter of geography or the fact that the coal processor is also the end user. Rather, it must be the extent and type of processing that determines whether the Mine Act applies.

In 1982, the Federal Mine Safety and Health Review Commission recognized this principle and outlined the basic framework for determining whether [*27] a particular coal-processing operation is subject to MSHA jurisdiction, stating that "inherent in the determination of whether an operation properly is classified as 'mining' is an inquiry not only into whether the operation performs one or more of the listed work activities, but also into the nature of the operation performing such activities." Secretary of Labor v. Elam, 4 FMSHRC 5, 7 (1982). The Commission also stated that the "'work of preparing coal' connotes a process, usually performed by the mine operator engaged in the extraction of the coal or by custom preparation facilities, undertaken to make coal suitable for a particular use or to meet market specifications." Id. at 8. This reasoning supports the conclusion that location and ownership are secondary to the nature of the processing that occurs at the facility.

The Fourth Circuit has also recognized the absurdity of limiting MSHA jurisdiction to a commercial inquiry:

We think it irrelevant that United Energy is transporting and delivering the coal to the power plant it operates, rather than to another consumer of coal. The statute sets forth a functional analysis, not one turning on the identity of [*28] the consumer, and United Energy's activities meet the functional test. Although delivery of coal to a consumer after it is processed usually does not fall under the coverage of the Mine Act, United Energy's activities occur a step earlier in the overall process. They involve the transportation of coal to the preparation facility and thus are part of the "work of preparing coal."

United Energy Servs., Inc. v. Federal Mine Safety & Health Admin., 35 F.3d 971, 975 (4th Cir. 1994) (emphasis added); see also RNS Servs., Inc. v. Secretary of Labor, 115 F.3d 182, 184 (3d Cir. 1997) (adopting functional analysis).

That a power plant is the end user of coal it substantially processes is no answer to whether the Mine Act applies. n5 In Air Products & Chemicals, Inc. v. Secretary of Labor, a power plant processed bituminous coal refuse and "run-of-mine" coal that was delivered by truck, See 15 FMSHRC 2428, 2429 (1993). The refuse and coal was screened, sized, crushed, and stored until it was fed into boilers to produce electricity and steam. See id. The Commission held that the coal processing constituted the "work of preparing coal." Id. at 2431.

n5 Clearly not every end user of coal is subject to the Mine Act, Here, however, the plain language of the statute indicates the Mine Act's applicability to the substantial coal processing conducted at Thomas Hill. Simply characterizing the coal purchased by Associated as "marketable" is no answer to the question of whether the Thomas Hill coal-processing operation constitutes "preparation" within the meaning of the statute. To the extent that marketability affects the determination of whether the Mine Act applies, the fact that Associated substantially processes the coal it receives indicates that marketability is a relative concept. In any event, a functional approach must involve a deeper inquiry than the identity of the consumer and whether the coal has undergone some previous minimal processing.

[*29]

The Commission also rejected the end-user theory in Secretary of Labor v. Westwood Energy Properties, concluding that the Mine Act applied to a culm bank operation, in which culm (anthracite coal mining waste) was screened and crushed to the specifications required by Westwood's electric generation facility. See 11 FMSHRC 2408, 2412-15 (1989); see also Secretary of Labor v. Pennsylvania Electric Co., 11 FMSHRC 1875, 1879-82 (1989) (concluding that the Mine Act applied to conveyor head drives used to transport coal at an electric generation facility). The Third Circuit affirmed this analysis in the Pennsylvania Electric case, stating that "the conveyor transports the coal to the coal-processing station. At the station the coal is broken, crushed, sized, washed, cleaned, dried, and blended in order to make a 'useable coal product' for the electric generating facility." Pennsylvania Elec. Co., 969 F.2d at 1503. The court concluded that "the delivery of coal from a mine to a processing station via a conveyor constitutes coal preparation 'usually done by the operator of a coal mine.'" Id. (citing 30 U.S.C. § 802(i)).

That the coal is extracted elsewhere is no [*30] answer to whether the Mine Act applies. The Third Circuit has stated that the definition of mine "is so expansively worded as to indicate an intention on the part of Congress to authorize the Secretary to assert jurisdiction over any lands integral to the process of preparing coal for its ultimate consumer." RNS Servs., Inc., 115 F.3d at 186 (emphasis added). It can hardly be disputed that Thomas Hill is integral to the process of preparing coal for its ultimate use. Recognizing the absurdity of limiting MSHA jurisdiction to a geographical inquiry, the Third Circuit noted that "the delivery of raw coal to a coal processing facility is an activity within the Mine Act, but not the delivery of completely processed coal to the ultimate consumer." Pennsylvania Elec, Co., 969 F.2d at 1504 (citing Stroh v. Director, OWCP, 810 F.2d 61, 64 (3d Cir. 1987) (emphasis added)). Associated significantly processes the coal it purchases. Thus, it cannot be said that it receives completely processed coal. Accordingly, the applicability of the Mine Act does not cease once the coal is loaded in Wyoming, in transit, or even when Associated takes possession of it. The proper inquiry [*31] must focus on both the nature and extent of Thomas Hill's coal-processing operation.

Not only does the majority choose to disregard Congress' clear mandate, it subjects the Thomas Hill coal-processing operation to a cursory, incomplete, and legally unfounded functional analysis. Instead of examining the facts in light of congressional definitions, the majority substitutes its own sense that the word "mine" must be defined narrowly for Congress' clear direction that it be defined broadly and in conformity to the statutory definitions. As noted above, Associated processes approximately 83,000 tons of coal each week. The coal it receives has only been sized so that it will pass through a 2 1/2 inch hole. No further crushing, sizing, or other form of preparation is done to the coal before it is shipped from the mines. Moreover, the coal does not pass under magnets before shipment to remove trash metal from the coal. Considering the relatively unprocessed form in which Associated receives the coal and the substantial processing it must therefore perform itself, the majority errs by focusing on the fact that a commercial transaction and geography separate the Thomas Hill coal-processing [*32] operation from the site of coal extraction. Based on the majority's logic, once raw coal is extracted and shipped to an end user, the Mine Act would not apply to any subsequent coal processing-irrespective of the nature or extent of processing. This is plainly at odds with the functional analysis mandated by Congress.

Finally, I agree that Congress is best suited to articulate the breadth of MSHA jurisdiction. Unlike the majority, however, I am unwilling to disregard Congress' clear mandate to resolve doubts in favor of MSHA jurisdiction and the Supreme Court's clear mandate to defer to the Secretary of Labor's reasonable interpretation of a statute. Not only is the majority's conclusion unsupported by the law, I fear that it will unnecessarily endanger the health and lives of coal-processing workers. For the reasons stated above, I respectfully dissent.

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DATE: APRIL 27, 1999

CLIENT: MCWILLIAMS

LIBRARY: LEXSEE

CITATION: 994 F. Supp. 1147

ALEXIS M. HERMAN, Secretary of Labor, Plaintiff, vs.

ASSOCIATED ELECTRIC COOPERATIVE, INC., Defendant.

No. 2:97CV39-DJS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

MISSOURI, NORTHERN DIVISION

994 F. Supp. 1147; 1998 U.S. Dist. LEXIS 1836; 1998 OSHD

(CCH) P31,631

February 18, 1998, Filed

DISPOSITION: [**1] Plaintiff's motion for preliminary injunction [Doc. # 2] granted. Plaintiff's motion for leave to file supplemental reply memorandum out of time [Doc. # 32] denied as moot. Plaintiff's motion to dismiss counterclaim for lack of subject matter jurisdiction [Doc. # 16] granted. Judgment entered in favor of plaintiff and against defendant on plaintiff's complaint. Defendant's counterclaim dismissed for lack of subject matter jurisdiction.

CORE TERMS: coal, conveyor, generating, plant, generation, preparing, power plant, inspection, counterclaim, transport, dumped, preparation, unloaded, magnet, pile, electric, preliminary injunction, train, motion to dismiss, injunction, burning, crushing, processed, jurisdictional, transported, pulverizers, cleaning, crushed, crackers, hopper

COUNSEL: For ALEXIS M. HERMAN, DEPARTMENT OF LABOR, plaintiffs: Margaret A. Miller, Edward Falkowski, US DEPARTMENT OF LABOR, Denver, Co.

For ASSOCIATED ELECTRIC COOPERATIVE, INC., defendant: Eugene E. Andereck, Rodric A. Widger, ANDERECK AND EVANS, Springfield, MO.

For ASSOCIATED ELECTRIC COOPERATIVE, INC., counter-claimant: Eugene E. Andereck, Rodric A. Widger, ANDERECK AND EVANS, Springfield, MO.

For ALEXIS M. HERMAN, counter-defendant: Margaret A. Miller, US DEPARTMENT OF LABOR, Denver, Co.

JUDGES: Donald J. Stohr, UNITED STATES DISTRICT JUDGE.

OPINIONBY: Donald J. Stohr

OPINION: [*1149] ORDER

The Secretary of Labor brings the instant action pursuant to 30 U.S.C. § 818(a) of the Federal Mine Safety and Health Act of 1977 ("Mine Act") seeking [**2] an injunction forbidding defendant from denying the Secretary's representatives entrance to and inspection of defendant's facility known as Thomas Hill Energy Center. Section 813 of Title 30 authorizes the Secretary to make warrantless inspections of "coal or other mines" for certain enumerated purposes. See also Donovan v. Dewey, 452 U.S. 594, 602, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (1981). The Secretary's complaint alleges that on June 23, 1997, defendant unlawfully denied Federal Mine Inspector Larry Maloney entrance to the Thomas Hill Energy Center preparation plant. In its answer and counterclaim, defendant denies that the power production facilities at the Thomas Hill Energy Center constitute a "mine" or perform the "work of preparing coal" so as to be subject to the Mine Act, and seeks a declaratory judgment consonant with its view. The parties have agreed to submit plaintiff's motion for preliminary injunction to the Court on briefs and stipulated facts. Also before the Court is the Secretary's motion to dismiss defendant's counterclaim for lack of subject matter jurisdiction.

Because the motion to dismiss the counterclaim raises issues concerning the Court's jurisdiction [**3] generally, the Court will first address that motion. The Secretary seeks dismissal of the counterclaim on the ground that the Mine Act allows the Secretary to seek relief in the district courts, see 30 U.S.C. § 818(a), but requires an employer to seek relief from the Federal Mine Safety and Health Review Commission, subject to review by a Court of Appeals, see §§ 815 and 816. The Supreme Court has upheld what appears to be the plain reading of this statutory scheme:

The Act expressly authorizes district court jurisdiction in only two provisions, §§ 818(a) and 820(j), which respectively empower the Secretary to enjoin habitual violations of health and safety standards and to coerce payment of civil penalties. Mine operators enjoy no corresponding right but are to complain to the Commission and then to the court of appeals.

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209, 127 L. Ed. 2d 29, 114 S. Ct. 771 (1994) (emphasis in original). The Court therefore readily concludes that it lacks jurisdiction over defendant's counterclaim for a declaratory judgment, which will be dismissed.

In any event, the same substantive issue is presented by both the complaint [**4] and the counterclaim. The Secretary indicates in her memorandum in support of the motion to dismiss that defendant has initiated administrative review of the validity of the citation issued to defendant for its refusal to permit MSHA inspection. An administrative law judge therefore has the same issue pending before him as is raised by the Secretary's complaint in this Court. Defendant's opposition to the motion to dismiss suggests that this Court should altogether defer to the administrative review pursuant to the doctrine of primary administrative jurisdiction.

The Court concludes that no such deferral is necessary or warranted in this case.

The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties..."Primary jurisdiction"...applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case [**5] the judicial process is suspended pending referral of such issues to the administrative body for its views.

United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-64, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956). The purposes to be served by the rule are decisional uniformity and maximizing the benefit of the specialized expertise of regulatory agencies. Id. at 64. "In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation." Id.

[*1150] As further discussed below, the issue before the Court requires a legal determination to be made on stipulated facts, and is in the Court's view a determination largely controlled by precedent of both the Commission and Courts of Appeals. In these circumstances, the exercise of jurisdiction by this Court neither threatens the uniformity of decisions on the subject, nor treads on areas of particular administrative expertise. Furthermore, as noted above, the Court's jurisdiction over the Secretary's complaint for injunctive relief is expressly provided for in the regulatory scheme: "the judge-made doctrine [**6] of primary jurisdiction comes into play when a court and an administrative agency have concurrent jurisdiction over the same matter, and no statutory provision coordinates the work of the court and of the agency." Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir. 1973). Upon careful consideration, then, the Court deems this matter inappropriate for application of the primary jurisdiction principle.

In connection with the preliminary injunction motion, the parties have stipulated to the following facts which the Court deems relevant to its determination.

Stipulated Facts

1. Associated Electric Cooperative, Inc. ("AECI") was incorporated in 1961 for the primary propose of providing a reliable supply of electric power to its six transmission cooperative owners.

2. AECI owns, operates and maintains three electric power generating units or plants (collectively referred to as "the power plant") at a facility known as the Thomas Hill Energy Center, near the town of Clifton Hill, in Randolph County, Missouri. The units were placed in service in 1966, 1969, and 1982.

3. Before 1993, the three electric generating units were fueled with coal extracted and [**7] prepared at a surface mine adjacent to the power plant.

4. In January, 1994, AECI began to receive sub-bituminous coal from two mines located in the Powder River Basin in the State of Wyoming. These mines are the Rochelle Mine (MSHA Mine Identification No. 48-01353), located in Campbell County, Wyoming, and the North Antelope Mine (MSHA Mine Identification No. 48-01375), also located in Campbell County, Wyoming. Both mines are operated by the Powder River Coal Company, a subsidiary of Peabody Holding Company.

5. Coal extracted at the Powder River mines is crushed before shipment to a size such that the largest pieces of coal will pass through a 2 1/2 inch hole. No further crushing or sizing or other form of preparation is done to the coal before it is shipped from the mines. The coal does not pass under magnets, before shipment, to remove trash metal from the coal. The mines are projected to mine about 60,000,000 tons of coal during 1997. Due to its low ash and sulfur content, this coal does not require cleaning or washing to remove these impurities. The crushed coal is shipped to approximately 50 industrial, commercial and utility customers at 65 different locations. The Rochelle [**8] Mine and the North Antelope Mine have been regularly inspected by MSHA's Gillette, Wyoming field office (within MSHA's Coal District 9, headquartered in Denver, Colorado) since the mines were opened in 1983 (North Antelope Mine) and 1985 (Rochelle Mine).

6. The coal from the Rochelle Mine and the North Antelope Mine is classified as "Class III, Group 3, Sub-bituminous C" coal within the meaning of the ASTM D388 coal classification standard. AECI converted its generating units and other facilities and contracted for rail cars to receive and use this class of fuel as part of a plan to comply with requirements of the Clean Air Act as amended in 1990.

7. Initially the Wyoming coal was delivered to the power plant in trucks that were loaded at the rail siding about fifteen (15) miles from the power plant. In September, 1994, AECI began to receive direct coal deliveries to the power plant by rail system built into the plant premises. A rotary car dump is used to tip the cars over to unload an average of six unit trains per week. A unit train is normally comprised of about 115 cars, each car carrying approximately 120 tons of coal. About 83,000 tons of coal are delivered each week to the [**9] power plant.

[*1151] 8. The coal received by AECI does not pass over or through any of the mine facilities and equipment previously operated by AECI's Mining Division. The fuel does not enter any working areas of the Mining Division that were inspected by MSHA prior to 1996.

9. Upon arrival from Wyoming, each trainload of coal passes through the "Car Dumper Building" where coal is dumped into hoppers one carload at a time. At the top of each hopper a "grizzly", or grate, removes large clumps of coal or other material that could block the hopper chutes.

10. Two of the power plant's three generating units -- Unit No. 1 and Unit No. 2 -- require 1/4-inch or less diameter coal. The coal is reduced to this size by two hammer mills that are housed in a building separate from the power generation building. Coal burned in the remaining unit, Unit No. 3, is crushed into a powder (capable of passing through a 200 mesh screen) after it reaches the power generation building, by pulverizers located in the power generation building. Exhibit 1 to this order illustrates the path the coal takes from the Car Dumper Building to each of the three power generating units.

11. From the dump hoppers located in [**10] the Car Dumper Building, the coal is fed onto conveyor # 28, which takes the coal to the Sample Building. In the Sample Building, the coal passes under the first of several magnets installed in the conveyor system to remove any scrap metal from the coal. It is important to detect and remove any metal debris such as tools, bulldozer bucket teeth, railroad spikes, etc., so that other equipment used later in the operation, e.g., coal crackers, crushers, pulverizers, and burner units, is not damaged. The Sample Building is primarily used as a structure where coal flow is transferred from one conveyor to another. It is called the "Sample Building" because provisions were made for future installation of automatic sampling equipment if needed. Actual sampling is done on a limited basis in the power plant, just before coal is placed in silos, to verify BTU, ash, and sulfur content in compliance with applicable emission standards. By contract, the primary sampling is done in laboratories at the Wyoming mines.

12. Some of the coal that enters the Sample Building from the Car Dumper Building must be diverted, via belt # 29, to a coal storage pile because, as train cars are unloaded, coal enters [**11] the Sample Building faster than it can be conveyed "downstream" toward the power generating units. When train cars are not being unloaded, coal from the coal storage pile is fed back onto conveyor # 28 and again enters the Sample Building.

13. After moving through the Sample Building, the coal is transported via conveyor # 30 to Transfer House No. 3 (T3). Here again, the coal passes under another magnet before being fed onto conveyors # 32 and # 31A to Transfer House No. 1 (T1). T1 contains two more magnets that protect coal from T3 and from the "yard reclaim" (i.e., collected dust and/or spillage), before the coal is directed from T1 into one of two different directions.

14. Final coal preparation for burning is tailored for the requirements of the individual generating units, as follows:

A. Thomas Hill Units 1 and 2.

I. Coal that is to be used in the No. 1 and 2 power generating units is transported out of Transfer House No. 1 on conveyor # 31B. The coal passes under another magnet, and then is dumped into the "Units 1 and 2 Track Hoppers". From the Track Hoppers the coal is fed onto either conveyor # 1A or # 1B, which then dump the coal onto ready piles. From the ready [**12] piles, the coal travels on either conveyor # 2A or # 2B to Units 1 and 2 Crusher House.

ii. Thomas Hill Units 1 and 2 are called cyclone boilers. The coal must be crushed from the 2 1/2 inch size delivered by the Rochelle Mine and North Antelope Mine to a 1/4-inch size. The Crusher House has two Pennsylvania hammer mill crushers which were recently updated -- from the existing models originally installed in 1966 -- to larger units. Their purpose is to crush the coal to cyclone burner size of 1/4-inch for Units 1 and 2. The coal is then fed onto conveyors # 3A and # 3B for transport to the Unit 1 and 2 plant storage [*1152] silos located in the power generation building.

B. Thomas Hill Unit 3.

I. The Thomas Hill Unit 3 is called a pulverized coal boiler. Coal that is to be used in the No. 3 power generating unit is directed onto conveyors # 33A and # 33B, transported out of Transfer House No. 1 and dumped onto ready piles. From the ready piles, the coal is fed through coal crackers and then is dumped onto conveyors # 37 and # 38. Coal crackers are breakers used to break larger chunks of coal into smaller sizes. These crackers can be turned on and off, and are normally used to break up [**13] clumps of frozen coal from the outdoor ready piles. Conveyors # 37 and # 38 then carry the coal to Transfer House No. 2 (T2).

ii. In Transfer House No. 2, the coal passes under magnets, and then is fed into a granulator (ring crusher) to ensure that its size is about 1 1/2 to 2 inches. Once through the granulator, the coal passes one last time under magnets before dropping onto conveyors # 39 and # 40 (and then onto # 41 and # 42), for transport to the Unit No. 3 storage silos in the generation building. Although in the past the granulator in T2 was used primarily in the winter to break up frozen chunks of coal, it is now being utilized regularly to provide a more consistent size of coal for feeding into the pulverizers for the No. 3 Unit.

iii. The coal burned in Unit 3 must be pulverized to a consistency like face powder. It has to be reduced in size so that 74 percent of the coal will pass through a 200 U.S. Standard Sieve. The pulverizers for Unit 3 are located in the power generation building.

15. In September 1995, the Occupational and Health Administration (OSHA) office in Kansas City, Missouri, received a complaint from an employee of AECI's Thomas Hill Energy Center. [**14] The complaint alleged, among other things, that employees were exposed to the hazard of breathing coal dust that is created when railroad cars are unloaded; that employees are exposed to the hazard of fire and explosion from coal dust suspended in the air in belt tunnels; and that employees are exposed to the hazards of fire and explosion from accumulated coal and coal dust in the Track Hopper feeder and # 1A and # 1B conveyor belt tunnels.

16. In response to the complaint an OSHA inspector conducted an inspection of the facilities. Air samples were taken and analyzed. Some time after the OSHA inspector's site visit, OSHA reported to the AECI Plant Safety Coordinator that the matter was being referred to MSHA to resolve a question of possible MSHA jurisdiction under the Mine Safety and Health Act (the "Act"). OSHA referred the matter to the MSHA office in Hillsboro, Illinois.

17. Prior to the referral, it was the MSHA District office's practice not to conduct inspections of coal fired electric generating facilities where the only known processing of coal -- i.e. crushing or pulverizing -- was done to facilitate the combustion process. Accordingly, as a result of the referral from [**15] OSHA, the District Manager for MSHA in Vincennes, Indiana, sought legal advice from MSHA's National office concerning MSHA's jurisdiction at the power plant.

18. In the course of MSHA's jurisdictional determination, on August 5, 1996, MSHA Inspector Larry G. Maloney visited the Thomas Hill Energy Center to view the activities that were being conducted at the site. After reviewing the information submitted, MSHA headquarters concluded that MSHA had jurisdiction at the facility over all areas (including unloading, storage, and preparation areas) from the point at which the coal is unloaded from the train cars to the locations where coal is dumped onto conveyors 3A, 3B, 39, and 40, for transport into the power generation building.

19. Subsequently, the District Manager for MSHA's District 8, Coal Mine Safety and Health, and the Regional Administrator for OSHA's Kansas City Regional Office, executed a Jurisdictional Determination regarding the coal handling activities at the Thomas Hill Energy Center, providing that MSHA jurisdiction extends to "All areas and buildings from where the coal arrives at the rotary dump until the prepared coal from the Crusher House and Transfer House No. [**16] 2 is dumped onto conveyors 3A and 3B, and 39 [*1153] and 40 for transport to the power generating building."

20. In late March, 1997, MSHA informed AECI of its jurisdictional determination and offered to meet with the company. In June 1997 MSHA again offered to meet with the company for the purpose of discussing the requirements of the Mine Act and its regulations. AECI declined to meet with MSHA, and informed MSHA that it disagreed with MSHA's jurisdictional determination and that it would not permit MSHA to inspect the Thomas Hill Power Plant coal handling facilities.

21. On June 23, 1997, MSHA Inspector Larry G. Maloney traveled to the Thomas Hill Energy Center to conduct an inspection of those areas which MSHA asserted were within MSHA's jurisdiction. Inspector Maloney identified himself to Jerry Pinegar, Plant Manager. Mr. Pinegar refused to allow entry to Inspector Maloney for the purpose conducting an MSHA inspection. Inspector Maloney then issued, pursuant to section 104(a) of the Act (30 U.S.C. 814(a)), MSHA citation No. 4264782, alleging a violation of section 103(a) of the Act (30 U.S.C. 813(a)), and gave the facility 30 minutes to abate the alleged violation. Mr. Pinegar continued [**17] to refuse to allow the inspection, so Inspector Maloney issued order No. 4264783 pursuant to section 104(b) of the Act (30 U.S.C. 814(b)), and then returned to his office in Kirksville, Missouri.

Conclusions of Law

The Court's determination turns on its construction, and application to the undisputed facts, of several definitions in the Mine Act. In view of the apparent lack of any dispute of material fact and the issue of law for the Court, the Court deems it appropriate to advance the determination on the merits and to consolidate consideration of the preliminary and permanent injunctions pursuant to Fed.R.Civ.P. 65(a)(2). See also Agee Agricultural Equipment Sales v. Trail King Industries, 800 F.2d 789, 792 n.2 (8th Cir. 1986); United States ex rel. Goldman v. Meredith, 596 F.2d 1353, 1358 (8th Cir. 1979). There exists no indication in the record that additional evidence or argument is necessary to the ultimate disposition of the case.

On a related threshold matter, defendant argues that plaintiff is unable to demonstrate a threat of irreparable harm as is required to support issuance of a preliminary injunction. The Court's advancement of consideration of the [**18] full merits of the case and consolidation of the preliminary and permanent injunction proceedings moot this contention. In any event, the Court would reject the argument in view of the statutory provision for injunctive relief under which the Secretary brings the action: "It is a well-established rule that where Congress expressly provides for injunctive relief to prevent violations of a statute, a plaintiff does not need to demonstrate irreparable harm to secure an injunction." Burlington Northern Railroad Company v. Bair, 957 F.2d 599, 601-02 (8th Cir. 1992); Atchison, Topeka and Santa Fe Railway Co. v. Lennen, 640 F.2d 255, 259-60 (10th Cir. 1981). Returning to consideration of the merits of the case, the Court need not and does not further address the factors ordinarily considered in the preliminary injunction context. See Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 112 (8th Cir. 1991).

Section 803 of Title 30 provides 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." [**19] In pertinent part, the term "coal or other mine" is defined in § 802(h)(1)(C) to include:

lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property...used in, or to be used in...the work of preparing coal or other minerals, and includes custom coal preparation facilities.

The "work of preparing coal" is defined as "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine." § 802(I). The Court is called upon to determine whether defendant's handling of coal in connection with its generation of electrical [*1154] power constitutes the "work of preparing coal" within the meaning of this statutory definition.

In United Energy Services v. MSHA, 35 F.3d 971 (4th Cir. 1994), the Fourth Circuit considered the application of the Mine Act to a power plant which generates electrical power by burning coal waste. The court held that the conveyor belt system used to transport coal about the plant, and to size it for burning, [**20] constituted structures, equipment and machines used in the "work of preparing coal" within the meaning of § 802(h)(1) and (I). Id. at 975. The Fourth Circuit rejected as irrelevant to the analysis the operator's argument that the coal was not prepared for release into the chain of commerce but instead ultimately used internally:

The statute sets forth a functional analysis, not one turning on the identity of the consumer, and United Energy's activities meet the functional test. Although delivery of coal to a consumer after it is processed usually does not fall under the coverage of the Mine Act, United Energy's activities occur a step earlier in the overall process. They involve the transportation of coal to the preparation facility and thus are part of the "work of preparing coal."

Id.

The Third Circuit reached a similar result in Pennsylvania Electric Company v. Federal Mine Safety and Health Review Commission, 969 F.2d 1501 (3rd Cir. 1992). The electric company received raw coal from adjacent mines. After reaching the power plant, the raw coal was sized and cleaned. The court held that the electric company's "conveyer head drives constitute the 'work [**21] of preparing coal,'" because "the delivery of coal from a mine to a processing station via a conveyor constitutes coal preparation 'usually done by the operator of a coal mine.'" Id. at 1503. See also RNS Services, Inc. v. Secretary of Labor, 115 F.3d 182 (3rd Cir. 1997).

The Federal Mine Safety and Health Review Commission has similarly construed the statutory definition of "work of preparing coal." In Secretary of Labor v. Westwood Energy Properties, 11 FMSHRC 2408, 1989 WL 433698 (F.M.S.H.R.C. 1989), the Commission concluded that Westwood's transportation, magnetic cleaning, and crushing to resize coal, all to ready the coal for combustion to generate electricity, were subject to the jurisdiction of the Mine Safety and Health Administration under the Mine Act:

We conclude that Westwood literally engages in the "work of preparing the coal" in that the processes undertaken by Westwood on the mine waste material, including coal, are among those specified in the statutory definition. We further conclude that although Westwood does not undertake to prepare the coal contained in the mine refuse to meet market specifications, it does engage in the enumerated processes, [**22] as does the normal coal mine operator, for the purpose of making the mined material suitable for a particular use; here, as a fuel to be consumed at an electric generating facility.

Id. at 2415. See also Air Products and Chemicals, Inc. v. Secretary of Labor, 15 FMSHRC 2428, 2431, 1993 WL 525480 (F.M.S.H.R.C. 1993).

As stipulated by the parties, defendant's handling of coal includes moving the coal by means of an extensive conveyor system, magnetically cleaning the coal to remove scrap metal, storing coal, and cracking and crushing coal to reduce its size. Each of these activities is among those enumerated in the statutory definition of the "work of preparing coal," or those cited in the unanimous precedent discussed above. These activities therefore support a determination that defendant's handling of coal falls within the Mine Act, and the Court concludes that the areas from the point at which the coal is unloaded from the train cars to the locations where coal is dumpted onto conveyors 3A, 3B, 39 and 40 for transport into the power generation building are within the statutory jurisdiction of the Federal Mine Safety and Health Administration. In the Court's view, [**23] the earlier historical division of jurisdiction between the Mine Safety and Health Administration and the Occupational Safety and Health Administration with respect to the Thomas Hill Energy Center and the once-adjacent mine is irrelevant to the legal determination, as is whether MSHA exercises jurisdiction over other generating plants in the region.

In her memoranda, the Secretary responds to an argument that the sub-bituminous [*1155] coal processed by defendant falls outside the statutory definition, which refers to "bituminous coal, lignite, or anthracite." The Court's review of defendant's memoranda does not reveal the assertion of any such argument. In any event, the Court agrees with the Secretary that the statutory language is intended not as an exclusive list but as indicating inclusion of all forms of coal along the spectrum from bituminous coal to anthracite. See Pltf. Supp. Memo. [Doc. # 29], pp.10-14. Furthermore, in RNS Services, 115 F.3d at 186, the Third Circuit rejected a challenge to the application of the Mine Act based on the relative impurity of "coal refuse" processed for burning to generate electricity: "the statute gives no indication that it is concerned [**24] only with coal in forms that are pure or nearly so." To the contrary, the Mine Act "regulates 'coal or other mines,' so it plainly is not concerned solely with traditional coal." Id., quoting 30 U.S.C. § 802(h)(1).

Exhibit 6 to the parties's stipulation of facts is a videotape containing a narrated tour of defendant's movement of coal through its plant. The scope and capacity of this system yields substantial concerns, acknowledged and addressed in the taped tour, of dust suppression and fire and explosion hazards. These dangers, highlighted in the employee complaint which precipitated the dispute now before the Court, see P15 infra, p.12, are among those which the Mine Act was implemented to address. See 30 U.S.C. § 801. Although not directly bearing on the Court's analysis, these observations suggest that the application of the Mine Act to the coal moving and processing portions of defendant's plant is consistent with the purposes for which the Mine Act was enacted. In addition, in view of the health and safety policies underlying the Act, the legislative history of the Mine Act instructs that it is intended to be broadly construed:

It is the Committee's [**25] intention that what is considered to be a mine and to be regulated under this Act be given the broadest possible interpretation, and it is the intent of this Committee that doubts be resolved in favor of inclusion of a facility within the coverage of the Act.

S.Rep.No. 181, 95th Cong., 1st Sess. 1, 14, reprinted in 1977 U.S.C.C.A.N. 3401, 3414.

In conclusion, the Court determines as a matter of law, based on the undisputed material facts, that those portions of defendant's plant through which coal is transported and processed to readiness for burning, as shown on Exhibit 1 attached hereto, namely all areas and buildings from the point at which the coal is unloaded using the Rotary Car Dumper to the locations in the Crusher House and Transfer House # 2 where coal is dumped onto conveyors 3A, 3B, 39 and 40 for transport into the power generation building, are within the statutory jurisdiction of the Federal Mine Safety and Health Administration. The Court will therefore grant the Secretary's motion for preliminary injunction and, based upon the Court's consolidation of the preliminary injunction with consideration of the merits, enter summary judgment in favor of the Secretary, [**26] granting her the injunction sought in her complaint.

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion for preliminary injunction [Doc. # 2] is granted.

IT IS FURTHER ORDERED that plaintiff's motion for leave to file supplemental reply memorandum out of time [Doc. # 32] is denied as moot in view of the supplemental reply memorandum timely received and filed on February 6, 1998.

IT IS FURTHER ORDERED that plaintiff's motion to dismiss counterclaim for lack of subject matter jurisdiction [Doc. # 16] is granted.

Dated this 18th day of February, 1998.

Donald J. Stohr

UNITED STATES DISTRICT JUDGE

[SEE Exhibit 1 to Court's Order IN ORIGINAL]

JUDGMENT

Pursuant to the order entered herein this day,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that judgment is entered in favor of plaintiff and against defendant on plaintiff's complaint.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that defendant's counterclaim is dismissed for lack of subject matter jurisdiction.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that defendant Associated Electric Cooperative, Inc., its agents, servants, and employees, and all persons in active [**27] concert and participation with them, are hereby enjoined:

. from denying authorized representatives of the Secretary of Labor entry to, upon or through Thomas Hill Energy Center mine, namely all areas and buildings from the point at which the coal is unloaded using the Rotary Car Dumper to the locations in the Crusher House and Transfer House # 2 where coal is dumped onto conveyors 3A, 3B, 39 and 40 for transport into the power generation building;

. from refusing to permit inspection of Thomas Hill Energy Center mine; and

. from interfering with, hindering or delaying the Secretary of Labor or his authorized representatives in carrying out the provisions of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq.

Dated this 18th day of February, 1998.

Donald J. Stohr

UNITED STATES DISTRICT JUDGE