                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 14-1450


POWER FUELS, LLC,

                Petitioner,

           v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION; SECRETARY OF
LABOR, MINE SAFETY AND HEALTH ADMINISTRATION,

                Respondents.



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:   December 11, 2014                 Decided:   January 27, 2015


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Petition for review denied by published opinion.        Judge
Wilkinson wrote the opinion, in which Judge Gregory and Judge
Duncan joined.


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.




                                  2
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.



                                            I.

       The parties do not dispute the facts underlying this case.

In any event, we will sustain the Commission’s factual findings



                                                3
so long as they are “supported by substantial evidence on the

record considered as a whole.” 30 U.S.C. § 816(a)(1).



                                             A.

       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.



                                              4
       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

finished products across the road, from the blending terminal to

Dominion’s power plant.



                                              B.

       Dominion’s        plant    and    Power          Fuels’       terminal      both    began

operations in 2011. The following year, an inspector from MSHA

noticed    trucks     delivering        coal       to    the     Power     Fuels      site.     The

agency     was    unaware        at     the    time        of        any   coal-preparation

                                               5
facilities       operating     there.     An       investigator      from    MSHA     then

visited the site and observed that Power Fuels was blending,

storing, and loading coal for the power plant across the road.

Following a review by MSHA and the Department of Labor’s Office

of the Solicitor, the Secretary determined that the blending

terminal was subject to MSHA’s jurisdiction.

      Once      MSHA     asserted        jurisdiction,         the     agency        began

performing       inspections      of     the       facility.   In    April    2013,     an

inspector issued three citations to Power Fuels for violations

of   MSHA    standards    involving        the      trucks’    braking      systems    and

warning     devices.     See   30      C.F.R.      §   77.410(c),    77.1605(b).       The

agency assessed a civil penalty of one hundred dollars for each

citation.       MSHA   later    imposed        additional      citations      on    Power

Fuels,    but    the   contests     of    those        citations    have    been    stayed

pending the outcome of this appeal.

      Power Fuels contested the three initial citations on the

ground that it was not the operator of a mine for the purposes

of the Mine Act, and that MSHA consequently lacked jurisdiction.

In November 2013, an administrative law judge for the Federal

Mine Safety and Health Review Commission held an evidentiary

hearing. In a March 2014 decision, the ALJ concluded that Power

Fuels was engaged in the “work of preparing the coal” under the

Mine Act. 30 U.S.C. § 802(h)(1)(C), (i). The ALJ took particular

note of the fact that “the testing, blending, and re-blending as

                                               6
necessary, are directly accomplished in order to [e]nsure and

maintain     the    consistent        quality          of    the    coal     pursuant       to

Dominion’s        quality       specifications.”             J.A.      333.        The     ALJ

accordingly       ruled     that     MSHA’s       jurisdictional            assertion       was

proper,     and     he     affirmed        the        citations       and     accompanying

penalties.

      Power Fuels filed a petition for discretionary review with

the Commission. The Commission declined to grant review, and

consequently the ALJ’s decision became the final order of the

Commission. See 30 U.S.C. § 823(d)(1). Power Fuels now petitions

for review in this court. See id. § 816(a).



                                            II.

                                            A.

      The Mine Act specifically protects the safety and health of

individuals       who    work   in   a     “coal      or    other     mine.”    30       U.S.C.

§ 802(h)(1)(C); see id. § 801. But even before MSHA asserted

jurisdiction under the Mine Act, Power Fuels’ blending terminal

was   not    beyond       the      reach    of        federal      safety      and       health

regulations.       The    Occupational       Safety         and    Health    Act     of   1970

(“OSH Act”) provides a statutory baseline for “assur[ing] so far

as possible every working man and woman in the Nation safe and

healthful    working      conditions.”           29   U.S.C.       § 651(b).    This       far-

reaching    enactment       mandates       workplaces         “free    from     recognized

                                             7
hazards.”        Id.    § 654(a)(1).         Where       Congress        has     enacted      an

industry-specific          statute      conferring          authority          over    working

conditions       on    another   agency,       however,       the    OSH       Act    does    not

apply.      29   U.S.C.     § 653(b)(1).           The     Mine   Act,      which      governs

occupational safety and health at “[e]ach coal or other mine,”

is such a statute. 30 U.S.C. § 803.

       In    practice,         then,     the       regulatory        dynamic          involves

displacement: MSHA may “exercise[] its statutory authority under

the Mine Act in such a way as to preempt OSHA’s regulatory

jurisdiction under the OSH Act.” United Energy Servs., Inc. v.

Fed. Mine Safety & Health Admin., 35 F.3d 971, 977 (4th Cir.

1994). The OSH Act is “comprehensive,” Martin v. Occupational

Safety & Health Review Comm’n, 499 U.S. 144, 147 (1991), but it

also    affords        space   for     specialized         regulatory          schemes.       The

Secretary of Labor administers both the Mine Act and the OSH Act

and determines initially whether a workplace falls under the

jurisdiction       of    MSHA,   rather      than        OSHA.    See,    e.g.,       Sec’y    of

Labor v. Nat’l Cement Co. of Cal., 494 F.3d 1066, 1073 (D.C.

Cir. 2007).

       The regulatory systems administered by MSHA and OSHA share

many     similarities,         but     the     differences          --     in    scope        and

enforcement -- may hold significant implications for an employer

and its employees. For example, although OSHA has established

extensive        workplace       standards           for     toxic         and        hazardous

                                               8
substances,   see    29   C.F.R.   pt.       1910,    subpts.    H,     Z,    MSHA’s

regulations are specifically tailored to the dangers that arise

from handling coal, such as exposure to coal dust and other

airborne contaminants, see 30 C.F.R. pt. 71. The Mine Act also

provides the Secretary with an array of enforcement mechanisms,

such as inspections, investigations, recordkeeping, citations,

and orders, that are particularized to the industry’s hazards.

See 30 U.S.C. §§ 813, 814. The Secretary may need to draw on

“historical familiarity and policymaking expertise” to determine

which agency’s framework is appropriate for a given workplace.

Martin, 499 U.S. at 153.



                                    B.

     With the Mine Act, Congress fashioned a law that is not

only tailored to a specific industry, but also comprehensive in

its coverage. The force of the statute is evident even from

Congress’s    preliminary     declarations.               30   U.S.C.        § 801(c)

(identifying “an urgent need to provide more effective means and

measures for improving the working conditions and practices in

the Nation’s coal or other mines in order to prevent death and

serious   physical   harm,   and   in       order    to    prevent    occupational

diseases originating in such mines”). Congress also expressed

particular solicitude for the individuals who are continually

exposed to the hazards of mining. Id. § 801(a) (announcing that

                                        9
“the first priority and concern of all in the coal or other

mining   industry   must   be   the   health   and   safety   of   its   most

precious resource -- the miner”). And Congress indicated that,

even as new mandatory standards were developed, id. § 801(g)(1)-

(2), operators would need to work with their employees to keep

these workplaces safe, id. § 801(e) (stating that “the operators

of such mines with the assistance of the miners have the primary

responsibility to prevent the existence of such conditions and

practices in such mines”).

     The Mine Act is also a broadly written statute. “Each coal

or other mine” is subject to the coverage of the Mine Act, id.

§ 803, and that term carries an expansive statutory meaning, see

id. § 802(h)(1). As relevant to this case, the Mine Act provides

that the term “coal or other mine” encompasses:

     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.

Id. § 802(h)(1)(C) (emphasis added). The definition of the “work

of preparing the coal,” in turn, includes a lengthy list of

activities, as well as a flexible final phrase: “the breaking,


                                      10
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).

      As the statutory text makes clear, the coverage of the Mine

Act   is    not     limited       to   extractive            activities      only.    The    Act,

crucially,         extends    to       a    variety       of    activities      involved       in

preparing          coal.     The        statute’s            jurisdictional          reach     is

deliberately        broad,     and         the    concomitant         definitions      are    not

rigid.      As     the     Senate          Committee         Report    stated,       “what    is

considered to be a mine and to be regulated under this Act”

ought to “be given the broadest possibl[e] interpretation,” and

any “doubts” about jurisdiction ought to “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.     In    sum,    Congress            concluded      that    the    workplace

hazards associated with mining coal or other minerals required

safety      and     health        measures         specifically          tailored      to     the

industry.        Congress     thus         produced      a     comprehensive        statute    to

ensure that the people who face such dangers -- even workers

involved     not     in    extraction            but    in     preparation     --     would    be

protected.




                                                  11
                                           III.

       Power    Fuels    contends        that       MSHA’s   jurisdiction          under   the

Mine    Act    does     not      reach    the       company’s      blending        terminal.

According to Power Fuels, the facility simply blends and stores

coal as directed by a utility, and it does not undertake the

type of work usually performed by the operator of a coal mine.

But the Mine Act plainly says that a covered coal mine may

engage in the “work of preparing coal,” 30 U.S.C. § 802(h)(1)(C)

-- such as “mixing,” “storing,” and “loading” coal, as well as

other comparable activities, id. § 802(i). The Act even states

that    coal      mines       may       include          “custom      coal     preparation

facilities.” Id. § 802(h)(1)(C). Whether this question is viewed

through   the    prism      of    the    kind       of   facility     that    Power      Fuels

operates or the kind of work that Power Fuels performs, it is

clear that Power Fuels falls within the coverage of the Mine

Act.



                                               A.

       Power Fuels’ blending terminal is the type of facility that

is   subject    to    the     Mine      Act.    The      Mine   Act      enables    MSHA   to

regulate “[e]ach coal or other mine,” “each operator of such

mine,” and “every miner in such mine.” 30 U.S.C. § 803; see id.

§ 802(d),      (g),   (h).    The    statutory           meaning    of    “coal     or   other

mine”   expressly       embraces        facilities        engaged     in     the   “work   of

                                               12
preparing coal.” Id. § 802(h)(1)(C). The coal mines covered by

the    Act     also       specifically         include      “custom       coal   preparation

facilities.”          Id.    Power      Fuels’       blending       terminal     is   such    a

facility.

       At     the    blending      terminal,         Power       Fuels    receives,    tests,

weighs, samples, mixes, blends, stores, loads, and transports

coal to meet the specifications of its customer, Dominion. With

some eight thousand tons of coal mixed each day and eight days

of    fuel    stored        onsite,     this    is    not    a    small    operation.     Coal

preparation logically involves an anticipated use -- preparation

for something else. See also Bureau of Mines, U.S. Dep’t of the

Interior, A Dictionary of Mining, Mineral, and Related Terms 226

(Paul W. Thrush ed., 1968) (defining “coal preparation” as a

“collective term for physical and mechanical processes applied

to    coal     to     make    it    suitable         for    a    particular      use”).   The

anticipated use here is consumption at Dominion’s power plant

across       the    road.     As   Power      Fuels    itself       explains,     Dominion’s

plant “employs state-of-the-art systems,” and the composition of

each coal blend produced by Power Fuels “has to meet precise

specifications to react properly in the furnace burn chamber.”

Petitioner’s          Br.     at   3,    5.     Even       though    Dominion     sets       the

specifications, it is the Power Fuels facility that prepares the

coal     for        the      finely      calibrated,             continually      customized



                                                13
consumption process at Dominion’s plant. In letter and spirit,

the Mine Act extends to facilities of this kind.



                                              B.

      It is further evident that the type of work performed by

Power Fuels comes within the purview of the Mine Act. The Act’s

definition     of    “coal    or    other      mine”    refers       to   the    “work    of

preparing coal.” 30 U.S.C. § 802(h)(1)(C). Under the statute,

the   “work    of    preparing         the    coal”    may   involve       an    array    of

enumerated     actions       --    “breaking,      crushing,     sizing,         cleaning,

washing,      drying,    mixing,          storing,     and    loading”          coal.    Id.

§ 802(i).      The   string       of    statutory       verbs    is       indicative      of

Congress’s      intent       to     regulate       a    comprehensive           range     of

activities related to coal preparation. More pointedly, several

of those verbs describe precisely what Power Fuels is doing.

Power Fuels avers that it does not crush, size, screen, or wash

coal.   But,    as    Power       Fuels      acknowledges,      it    does      engage    in

several of the covered functions: the terminal mixes, stores,

and loads coal.

      Beyond the enumerated activities, the “work of preparing

the coal” also encompasses “such other work of preparing such

coal as is usually done by the operator of the coal mine.” Id.

Power Fuels argues that this phrase serves to limit the listed



                                              14
verbs to work “of the type” usually performed by mine operators.

We do not read the phrase so restrictively.

     We think this phrase is one of inclusion, not exclusion. It

broadens the range of activities covered rather than limiting

them. Indeed, the statute tells us that the “work of preparing

the coal” includes the enumerated verbs “and” also this “other

work.” Id. (emphasis added). Under the grammatical “rule of the

last antecedent,” the qualifying words (here, “as is usually

done by the operator of the coal mine”) ordinarily modify only

the term that they immediately follow (here, “such other work of

preparing such coal”). See, e.g., Barnhart v. Thomas, 540 U.S.

20, 26-28 (2003); see also 2A Norman J. Singer & J.D. Shambie

Singer, Sutherland Statutes and Statutory Construction § 47:33

(7th ed. 2014). Moreover, the phrase “as is usually done by the

operator of the coal mine,” 30 U.S.C. § 802(i) (emphasis added),

refers     to   the     particular    coal     mine       in   question,       not

a paradigmatic coal-mine operator, as Power Fuels suggests.

     Our interpretation accords not only with the grammatically

sound    meaning   of   this   provision,    but   also    with   the   mode    of

analysis mandated by precedent. This court has explained that

the Mine Act “sets forth a functional analysis, not one turning

on the identity of the consumer.” United Energy Servs., Inc. v.

Fed. Mine Safety & Health Admin., 35 F.3d 971, 975 (4th Cir.

1994). We have emphasized that “the proper focus of our analysis

                                     15
is on the safety of mining operations,” and indeed it is highly

significant if a company’s “employees are subject to the same

risks as any other employee engaged in the ‘work of preparing

coal.’” Id. The inquiry turns on how the facility uses the coal

and whether the employees are exposed to the safety and health

hazards associated with coal-preparation activities. The text of

the statute, which defines “coal or other mine” and the “work of

preparing the coal,” provides basic tools for this functional

test.    30     U.S.C.    §    802(h)(1)(C),         (i).          Power       Fuels’    blending

terminal       performs       the    “work    of     preparing            coal”    --     indeed,

massive       quantities of         coal    each    day       --    and    thereby       subjects

workers to the risks contemplated in the Mine Act.

        Power    Fuels    contends         that    this   interpretation                admits    no

limitation. That is incorrect. The limitations are expressed in

the statute itself. The Mine Act covers those sites used for the

“work    of     preparing      coal,”      including      “custom          coal    preparation

facilities,”        like        that       operated           by     Power        Fuels.         Id.

§ 802(h)(1)(C). Covered sites may be engaged, inter alia, in the

“mixing,”       “storing,”      and    “loading”         of    coal       as    well     as   “such

other work of preparing such coal as is usually done” by this

entity. Id. § 802(i). Such activities are the reason the Power

Fuels    facility        is   in     business.      In    fact,       the       statute       seems

written with coal-preparation sites like Power Fuels’ in mind.

But the Mine Act does not encompass all companies that burn or

                                              16
consume      coal,    and   we    do    not      suggest     that    it      does.    The

jurisdictional        inquiry     is      more     particularized.        MSHA’s      own

enforcement guidance indicates that the agency “will not inspect

facilities where coal is prepared solely to facilitate loading

and not to meet specifications or to render the coal for any

particular     use.”    Mine     Safety    &     Health    Admin.,   U.S.     Dep’t   of

Labor, 1 Program Policy Manual § 3-4, at 2 (rev. ed. June 12,

2014). In other words, MSHA’s jurisdiction does not extend to

every facility where coal may in some way be involved. The scope

of the Act may still exceed what Power Fuels might wish, but

that of course is a matter of policy entrusted to Congress, not

the courts.

      By contrast, Power Fuels’ suggested approach may herald a

return to the era before the Mine Act was enacted in 1977. One

predecessor statute, the Federal Coal Mine Safety Act, ch. 877,

66   Stat.    692    (1952),     covered    a    much     narrower   range     of    coal

operations. Under this 1952 statute, a “mine” was used only for

the “work of extracting . . . coal” and the “work of processing

the coal so extracted” by the mine operator. § 201(a)(7), 66

Stat. at 692 (emphasis added). The “work of processing the coal”

was restricted to that “usually done by the operator,” and it

specifically excluded processing activities “usually done by a

consumer      or     others.”     Id.     Seventeen       years     later,     Congress

broadened the statutory coverage in the Federal Coal Mine Health

                                           17
and Safety Act of 1969, Pub. L. No. 91-173, 83 Stat. 742. The

1969 legislation defined a “coal mine” as involved in the “work

of extracting . . . coal” and the “work of preparing the coal so

extracted,” and the term’s meaning expressly included “custom

coal    preparation    facilities.”       § 3(h),    83    Stat.   at   744.     The

revised law spoke of “preparing” rather than “processing” coal,

and it eliminated the language from the 1952 statute that had

excluded coal processing usually done by a consumer or other

actors. § 3(h), (i), 83 Stat. at 744. Finally, in 1977, Congress

passed the Mine Act, integrating safety and health protections

for    miners   of   coal   and   other      minerals     into   one   statute    --

covering such workers whether they are engaged in extraction,

milling, or preparation. 30 U.S.C. § 802(h)(1)(C). The present

Mine    Act   provision,    notably,      no   longer     references    coal     “so

extracted”: it simply uses the now-familiar term, the “work of

preparing coal.” Id.; see id. § 802(i).

       The    1977   Mine   Act   has   driven      the    functional    analysis

employed by this court. We decline the invitation to interpret

the Mine Act in a way that returns extraction, or other outmoded

distinctions, to the center of the analysis. Such an approach

might have been appropriate under the legislative framework that

prevailed a half century ago. It is not today.




                                        18
                                         C.

       The parties disagree over the degree of deference we owe to

the Secretary of Labor’s interpretation. The basic question is

whether we should defer to the Secretary’s interpretation so

long as it is reasonable, Chevron U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-44 (1984), or whether his

interpretation is entitled to respect only to the extent of its

“power to persuade,” Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944). But we need not explore that issue. Congress’s intent in

the Mine Act is plain, and “[i]f the intent of Congress is

clear, that is the end of the matter.” Chevron, 467 U.S. at 842;

see    also   id.   at    843    n.9.    In     any   event,    the     Secretary’s

interpretation here warrants respect. See Sec’y of Labor ex rel.

Wamsley v. Mut. Mining, Inc., 80 F.3d 110, 114-15 & n.3 (4th

Cir.   1996).   The      Secretary,     after    all,   is     the    administrator

charged with overseeing the borderline between the background

regulations of OSHA and the specialized regulations of MSHA. We

have been instructed not to “waste [our] time in the mental

acrobatics needed to decide whether an agency’s interpretation

of     a      statutory         provision        is     ‘jurisdictional’         or

‘nonjurisdictional.’” City of Arlington v. FCC, 133 S. Ct. 1863,

1870 (2013). Instead we are asked to decide, “simply, whether

the    statutory      text   forecloses         the   agency’s       assertion   of

authority, or not.” Id. at 1871. In this instance, it does not.

                                         19
                                 IV.

    For   the   foregoing   reasons,   the    petition   for   review   is

denied.

                                             PETITION FOR REVIEW DENIED




                                 20
