Argued December 11, 2014.
On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission. (VA 2013-403; VA 2013-312-R; VA 2013-313-R; VA 2013-353-R).
ARGUED: Wade Wallihan Massie, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Petitioner. Tamara Yael Hoflejzer Burnett, UNITED STATES DEPARTMENT OF LABOR, Arlington, Virginia, for Respondents.
ON BRIEF: Seth M. Land, PENN, STUART & ESKRIDGE, Abingdon, Virginia, for Petitioner. M. Patricia Smith, Solicitor of Labor, Heidi W. Strassler, Associate Solicitor, W. Christian Schumann, Appellate Litigation, Sara L. Johnson, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents.
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Judge Wilkinson wrote the opinion, in which Judge Gregory and Judge Duncan joined.
WILKINSON, Circuit Judge:
Power Fuels, LLC, petitions for review of a final order of the Federal Mine Safety and Health Review Commission. Power Fuels operates a facility that receives, blends, stores, and delivers coal to meet the specifications of a power plant located across the road. The Department of Labor's Mine Safety and Health Administration (" MSHA" ) asserted jurisdiction over the facility under the Federal Mine Safety and Health Act of 1977 (" Mine Act" ).
The Mine Act covers operators of a " coal or other mine," including facilities engaged in the " work of preparing coal." 30 U.S.C. § 802(h)(1)(C), (i). Power Fuels challenged the Secretary of Labor's assignment of jurisdiction to MSHA, rather than to the nonspecialized Occupational Safety and Health Administration (" OSHA" ). We hold that the Secretary permissibly concluded that a facility that blends coal for a nearby power plant was subject to the Mine Act. Because the Mine Act covers this kind of activity, MSHA's assertion of jurisdiction was proper. We therefore deny the petition for review.
The parties do not dispute the facts underlying this case. In any event, we will sustain the Commission's factual findings so long as they are " supported by substantial evidence on the record considered as a whole." 30 U.S.C. § 816(a)(1).
Power Fuels owns and operates a coal-blending terminal in Wise County, Virginia. At this site, Power Fuels receives, tests, weighs, samples, mixes, blends, stores, loads, and transports coal for its customer, Virginia Electric and Power Company, doing business as Dominion Virginia Power. Dominion runs a power plant, the Virginia City Hybrid Energy Center, which produces electricity from coal and biomass. Power Fuels' blending terminal and Dominion's plant are situated on adjoining properties.
Power Fuels works as a contractor for Dominion under a formal agreement. The products provided by Power Fuels include coal and coal refuse, or " gob." Power Fuels mixes an estimated average of eight thousand tons of coal per day for Dominion at the blending terminal, and the facility stores an eight-day supply of fuel for Dominion's use. Dominion owns all the coal that Power Fuels prepares. Approximately eighty percent of the fuel consumed at Dominion's plant passes through Power Fuels' blending terminal, while the remaining twenty percent comes to the plant from other locations.
Power Fuels blends the coal according to the precise specifications provided daily by Dominion to ensure a proper reaction at the power plant. After the coal arrives, Power Fuels samples it and moves the material into separate piles, and it then uses equipment at the facility to blend the coal as directed by Dominion. Dominion's orders specify, for example, the number of buckets of each material to be used in the desired blend, as well as moisture, ash, sulfur, and BTU content. Under the companies' agreement, Power Fuels may recommend modifications of Dominion's order, but it must blend the coal as instructed unless Dominion decides
to change the specifications for that day. Power Fuels then tests the product. Based on the test results, Dominion may alter the order, in which case Power Fuels blends and tests the pile again until it meets Dominion's needs. The facility does not extract, crush, size, screen, or wash coal during this process. Finally, trucks transport the ...