                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-29-1997

RNS Ser Inc v. Secretary Labor
Precedential or Non-Precedential:

Docket 96-3245




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Filed May 29, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3245

RNS SERVICES, INC.,

Petitioner

v.

SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), and FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION,

Respondents

Amended per Clerk order 6/4/96

On Petition for Review of a Final Order of the
Federal Mine Safety and Health Review Commission
(Nos. PENN 95-382-R and 95-383-R)

Argued January 6, 1997

BEFORE: GREENBERG, COWEN and ALITO,
Circuit Judges

(Filed May 29, 1997)
R. Henry Moore, Esq. (Argued)
Heather A. Wyman, Esq.
Buchanan Ingersoll Professional
Corporation
One Oxford Centre
301 Grant Street
20th Floor
Pittsburgh, PA 15219-1410

Counsel for Petitioner
RNS Services, Inc.

Colleen A. Geraghty, Esq.
Jerald S. Feingold, Esq. (Argued)
United States Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203

Counsel for Respondent
Secretary of Labor, Mine
Safety and Health Administration
(MSHA)

OPINION OF THE COURT

COWEN, Circuit Judge.

RNS Services, Inc. ("RNS") petitions for review of an order
of the Federal Mine Safety and Health Review Commission
("the Commission"). While not contesting the merits of the
Commission's decision, RNS claims that the Federal Mine
Safety and Health Administration ("MSHA") lacks
jurisdiction over its No. 15 Refuse Pile ("the Site") in Barr
Township, Pennsylvania. In order for jurisdiction to be
present, the governing statute requires that coal be
processed at the Site in acts constituting "the work of
preparing the coal." 30 U.S.C. § 802(I)(1988). RNS contends
that the MSHA (and the Commission) lack jurisdiction
because the Site is not one at which "the work of preparing
the coal" occurs and the material handled at the Site is not

                   2
pure coal. We conclude that RNS's interpretation of the
statute is incorrect and we will affirm.

I. Facts and Procedural History

This is the review of a final order of the Commission. The
case arises out of two citations issued by the Secretary of
Labor (acting through the MSHA) to RNS under Title I,
Section 104(a) of the Federal Mine Safety and Health Act,
30 U.S.C. § 814(a)("the Act" or "the Mine Act"). The citations
alleged that RNS failed to record the results of the daily
examination of the Site, in violation of 30 C.F.R.
§ 77.1713(c), and failed to have a ground control plan for
the Site, in violation of the safety standard at 30 C.F.R.
§ 77.1000. RNS did not contest the facts of the violations as
cited, but instead challenged the Commission's jurisdiction
over the Site. RNS asserted that MSHA lacked jurisdiction
because the Site was not a "mine" as that term is defined
in Section 3(h)(1) of the Mine Act, 30 U.S.C. § 802(h)(1).
RNS lodged its challenge pursuant to 30 U.S.C. § 815(a).

After conducting an expedited evidentiary hearing
pursuant to 30 U.S.C. § 815(d), an administrative law judge
agreed with petitioners. The ALJ held that the Site was not
a "mine" and, therefore, not subject to MSHA jurisdiction.
On petition to the Commission for discretionary review
pursuant to 30 U.S.C. § 823(d)(1)(B), the Commission
reversed the decision of the ALJ and held that the loading
and transportation of coal that occurred at the Site were
sufficient to render the Site a "mine" under 30 U.S.C. § 802.
RNS petitions for review.

II. 30 U.S.C. Section 802

A. "Work of Preparing the Coal"

The Mine Act explains that "[a] `coal or other mine' means
an area of land . . . used in . . . the work of preparing the
coal . . . ." 30 U.S.C. § 802(h)(1). Accordingly, a "coal mine"
is a site at which, inter alia, "the work of preparing the
coal" usually occurs. 30 U.S.C. § 802(I). The Act delineates
activities that constitute "the work of preparing the coal":

                    3
`work of preparing the coal' means 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.

Id.

Turning to the case law, in Pennsylvania Elec. Co. v.
Federal Mine Safety and Health Review Comm'n ("Penelec"),
we held 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." 969 F.2d 1501, 1504 (3d Cir. 1992)(citing Stroh
v. Director, Office of Workers' Comp. Progs., 810 F.2d 61, 64
(3d Cir. 1987)). See also Hanna v. Director, Office of
Workers' Comp. Progs., 860 F.2d 88, 92-93 (3d Cir. 1988).
In Stroh, we found that "shovel[ing coal] into [a] truck, and
haul[ing] it to independently owned coal processing plants"
was integral to the work of preparing the coal. Id. at 62. We
further noted that the loaded coal's subsequent
transportation over public roads did not alter its status as
an activity that is part of the work of preparing the coal. Id.
at 65.

Penelec applied a functional analysis, wherein the
propriety of Mine Act jurisdiction is determined by the
nature of the functions that occur at a site. That analysis
has its roots in Wisor v. Director, Office of Workers' Comp.
Progs., 748 F.2d 176, 178 (3d Cir. 1984), was applied in
Stroh, 810 F.2d at 64, and has been adopted by the Fourth
Circuit. See United Energy Servs., Inc. v. Federal Mine
Safety & Health Admin., 35 F.3d 971, 975 (4th Cir. 1994).

In the instant case, loading, the principal function that
occurs at the Site, is an activity specifically listed in the Act
as constituting "the work of preparing the coal." 30 U.S.C.
§ 802(I). The petitioner asserts that the Commission
mistakenly made a per se ruling that whenever loading is
present at a site at which coal is handled, that site is a
"mine." We do not find that the Commission has made such
a per se ruling. Instead, the Commission took note that at
the Site, coal is in fact loaded, at a place regularly used for
that purpose, in preparation for further processing. The

                     4
Commission concluded that the plain meaning of the
statute and the relevant case law made clear that these
activities were sufficient to render the situs of these
activities a "mine."1
_________________________________________________________________

1. We hold that the only reasonable interpretation of the Commission's
holding in the instant case is that MSHA appropriately exercises
jurisdiction over a location in which coal is loaded in preparation for
further processing. In its decision, the Commission noted that the
processing occurred at the Site "[p]ursuant to a long-term contract."
App. at 524. The Commission also recited the relevant statutory
language, "as is usually done by the operator of the coal mine." App. at
527. Further, the Commission framed the key question as "whether the
few activities that do take place at the No. 15 pile are sufficient to bring
that site under the jurisdiction of the Mine Act." App. at 528. In
reviewing the propriety of MSHA jurisdiction, the Commission considered
only the work that "is usually done by the operator of the coal mine,"
i.e., "loading." App. at 527. In short, the Commission found that a
limited range of coal-processing activities regularly occurred at the Site.
App. at 528. To paraphrase National R.R. Passenger Corp. v. Boston and
Maine Corp., 503 U.S. 407, 420, 112 S.Ct. 1394, 1403 (1992), we believe
that the Commission's failure to explicitly state in one sentence that the
MSHA had jurisdiction because "loading" was the activity that "usually
occurr[ed]" at the Site "does not require a remand under those
circumstances."

We further note that Justice Frankfurter explained in Securities and
Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459
(1943), that the Court's concern in that case was that federal courts not
"intrude upon the domain which Congress has exclusively entrusted to
an administrative agency" in situations where"an order is valid only as
a determination of policy or judgment which the agency alone is
authorized to make and which it has not made." In the instant case, no
factual or other determination that Congress sought to "exclusively
entrust" to the Commission is being intruded upon by the courts.
Rather, 30 U.S.C. § 816(a), "Judicial Review of Commission Orders,"
specifically explains that

the court shall have exclusive jurisdiction of the proceeding and the
questions determined therein, and shall have the power to make
and enter upon the pleadings, testimony, and proceedings set forth
in such record a decree affirming, modifying, or setting aside, in
whole or in part, the order of the Commission and enforcing the same
to the extent that such order is affirmed or modified. . . . The
findings of the Commission with respect to questions of fact, if
supported by substantial evidence on the record considered as a
whole, shall be conclusive.

                    5
The Commission was cognizant that the coal refuse is
loaded at the Site for delivery to "the Cambria Co-
Generation Facility (Cambria) in Ebensburg, Pennsylvania,
which generates electricity and steam. The material
supplied by RNS to Cambria is broken and sized at
Cambria's facility." Op. of the ALJ, RNS App. at 7. The coal
is delivered from the Site to Cambria, where it is further
prepared before reaching a form useable by its ultimate
consumer. The storage and loading of the coal is a critical
step in the processing of minerals extracted from the earth
in preparation for their receipt by an end-user, and the
Mine Act was intended to reach all such activities.
Moreover, as the Commission noted, we have already
adjudicated the activities that occur at the Cambria plant
to be "the work of preparing the coal." Air Products &
Chemicals, Inc. v. Secretary of Labor, Mine Safety and
Health Admin., 15 F.M.S.H.R.C. 2428 (Dec. 1993), aff'd, 37
F.3d 1485 (3d Cir. 1994). It follows logically that the
handling of the coal at the Site in order that it may be
readied for subsequent processing at Cambria also
constitutes "the work of preparing the coal."

The list of items indicative of "the work of preparing the
coal" enumerated in the Mine Act is by no means exclusive.
This is demonstrated by the additional phrase "and such
other work of preparing such coal as is usually done by the
operator of the coal mine." It is noteworthy that this
sentence does not say, "[work] usually done by the operator
of a coal mine," as RNS states in its brief. RNS Br. at 15
(emphasis added). If it did, one might have to compare the
activities at the alleged coal mine with those of a typical,
paradigmatic, "usual" coal mine. The sentence as it actually
appears in the statute, however, does not help RNS. It
simply explains that the work of the coal mine is the work
that is usually done in that particular place. The fact that
the Site is perhaps an unconventional coal mine does not
defeat its status as a coal mine for the purposes of section
802.

B. Purity of the Coal

With regard to the issue of whether the mineral
composite removed from the Site is in fact coal, the ALJ

                   6
made a factual finding that "[t]esting of material removed
from the pile indicates that it shows the characteristics of
coal." Op. of the ALJ, RNS App. at 8. We have no reason to
believe that the ALJ's findings were clearly erroneous.

In addition, the statute gives no indication that it is
concerned only with coal in forms that are pure or nearly
so. The statute regulates "coal or other mines," so it plainly
is not concerned solely with traditional coal. 30 U.S.C.
§ 802(h)(1). In Marshall v. Stoudt's Ferry Preparation Co.,
602 F.2d 589, 592 (3d Cir. 1979), we held that the
operations of a preparation company that separated a low-
grade fuel from sand and gravel that had been dredged
from a riverbed came within the Act. It was immaterial that
the company processed "dredged refuse": "[T]he company's
process of separating from the dredged refuse a burnable
product . . . which was then sold as a low-grade fuel,"
placed that work within the definition of "coal preparation"
and thus made the operation a "mine." Id.

C. "Coal or Other Mine"

In section 802(h)(1), "coal or other mine" is defined
directly:

(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 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. In making a determination of
what constitutes mineral milling for purposes of this
chapter, the Secretary shall give due consideration to
the convenience of administration resulting from the
delegation to one Assistant Secretary of all authority

                    7
with respect to the health and safety of miners
employed at one physical establishment.

(emphasis added).

We find that this section 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.2
As the Commission noted in its decision reversing the ALJ,
"[t]he definitions of coal mine and coal preparation in
sections 3(h) and 3(I) [codified at 30 U.S.C. §§ 802(h)(1) and
(I)] are `broad[,]' `sweeping,' and `expansive.' " RNS App. at
17 (quoting Stoudt's Ferry, 602 F.2d at 591-92). Since the
Site was used in preparing the coal for its further
processing at the Cambria plant, the activity was within the
sweep of the statute.

The Site seems to be specifically described in the statute
by such words as "impoundments" (storage facilities), and
"custom coal preparation facilities," since it serves a
specialized purpose in a larger coal-processing operation.
The sweeping inclusion of "lands," "slopes," and "other
property" further indicates Congress's plain intention that
the Commission have broad jurisdiction over locations at
which coal is processed.

Finally, we note that the Site may independently fall
under the jurisdiction of the MSHA as a "land[ ] . . .
resulting from[ ] the work of extracting such minerals from
their natural deposits in nonliquid form . . . ." 30 U.S.C.
_________________________________________________________________

2. The dissent, with its "basement bin" example, overlooks our holding
(in the instant case and prior cases) that the MSHA has jurisdiction only
over locations in which, inter alia, coal undergoes processing that
prepares the coal for its ultimate use. See also Penelec, 969 F.2d at 1504
("the delivery of completely processed coal to the ultimate consumer" is
not "an activity within the Mine Act"); Stroh, 810 F.2d at 64 (for
jurisdiction to attach, the coal at issue must not yet be "a finished
product in the stream of commerce". For purposes of determining MSHA
jurisdiction under 30 U.S.C. § 802(i), therefore, the "work of preparing
such coal as is usually done by the operator of the coal mine" cannot
include the handling of coal that is in finished form and in the
possession of its ultimate consumer, as it would be in the dissent's
"basement bin."

                    8
§ 802(h)(1). The Secretary has not raised this argument on
appeal, however, and we leave its adjudication for another
day.

D. Purposes of the Act

When reading the Act, we are mindful that "[t]he canons
of statutory construction teach us to construe such
remedial legislation broadly, so as to effectuate its
purposes." Stroh, 810 F.2d at 63. As set forth in section
101, "Congressional findings and declaration of purpose,"
the Mine Act was passed in large part to bolster the powers
of the federal government to regulate the effects of mining
operations on health and safety:

Congress declares that--

(a) the first priority and concern of all in the coal or
other mining industry must be the safety and health
of its most precious resource--the miner. . . .

(g) it is the purpose of this chapter (1) . . . to direct
the . . . Secretary of Labor to develop and promulgate
improved mandatory health or safety standards to
protect the health and safety of the Nation's coal or
other miners; (2) to require that each operator of a
coal or other mine and every miner in such mine
comply with such standards . . . .

30 U.S.C. § 801.

Congress was sufficiently concerned about the health and
safety conditions at mines that, as was stated in Air
Products, "[u]nder the Mine Act, enforcement is not left to
the MSHA's discretion. Section 103(a) [codified at 30 U.S.C.
§ 813(a)] requires the agency to inspect all surface mines in
their entirety at least twice a year." 15 F.M.S.H.R.C. at
2436 n.2. (Commissioner Doyle, concurring).

In the instant case, the Commission has legitimate
concerns about worker safety and health at the Site. True
potential hazards arise from the fact that part of the Site is
banked; there are concerns about fire safety and the
composition and circulation of dust at the Site. Tripping
and stumbling are additional hazards. Audio Tape of Oral

                     9
Argument (Jan. 6, 1997)(on file with the Clerk, U.S. Court
of Appeals for the Third Circuit).

Guided by the declaration of purpose in section 101 and
the need to read remedial statutes broadly, we do not read
this statute to be facially ambiguous concerning the
propriety of the Commission's jurisdiction over the Site. The
plain meaning of the statute is evident on its face. To upset
this plain meaning by appealing to an extrinsic source,
appellants must carry a high burden: "[C]lear statutory
language place[s] an extraordinarily heavy burden on the
party who seeks to vary it by reference to legislative
history." Paskel v. Heckler, 768 F.2d 540, 543 (3d Cir.
1985). See also Garcia v. United States, 469 U.S. 70, 75,
105 S.Ct. 479, 482 (1984)("[O]nly the most extraordinary
showing of contrary intentions" justifies altering the plain
meaning of a statute.).

Here, a look at the legislative history does not bolster
appellant's position; on the contrary, it confirms the
position of the Secretary of Labor. The Senate report
indicates that a principal reason for passing the Act and
amending the predecessor Coal Act was to expand
jurisdiction:

[I]ncluded in the definition of `mine' are lands,
excavations, shafts, slopes, and other property,
including impoundments, retention dams, and tailings
ponds. These latter were not specifically enumerated in
the definition of mine under the [predecessor] Coal Act.
It has always been the Committee's express intention
that these facilities be included in the definition of mine
and subject to regulation under the Act, and the
Committee here expressly enumerates these facilities
within the definition of mine in order to clarify its
intent. . . . [The Committee is greatly concerned that [at
the time of a recent accident affecting an unstable
dam] the scope of the authority of the Bureau of Mines
. . . was questioned. Finally, the structures on the
surface or underground, which are used or are to be
used in or resulting from the preparation of the
extracted minerals are included in the definition of
`mine'. The Committee notes that there may be a need
to resolve jurisdictional conflicts, but it is the

                    10
Committee's intention that what is considered to be a
mine and to be regulated under this Act be given the
broadest possibl[e] interpretation, and 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. 95-181, at 14 (1977), reprinted in 1977
U.S.C.C.A.N. 3401, 3414 (emphasis added).

We conclude, therefore, that the legislative history clearly
shows that expansive jurisdiction was intended.

III. Conclusion

It is clear to us that the April 22, 1996, decision of the
Commission is in accord with the intent of Congress. For
the foregoing reasons, the Petition for Review of the Order
of the Federal Mine Safety and Health Review Commission
will be denied.

Costs taxed against petitioner.

                     11
ALITO, Circuit Judge, dissenting:

As I interpret the decision of the Federal Mine Safety and
Health Review Commission, it held that RNS was engaged
in the "work of preparing the coal" at the site in question
because RNS there performed one of the specific activities
listed in 30 U.S.C. § 802(i). The majority does not share the
Commission's view that the mere performance of any listed
specific activity suffices. Rather, the majority holds that
RNS was engaged in the "work of preparing the coal" at the
site because it there performed a listed activity on a regular
basis. I disagree with both the Commission's and the
majority's view of the law. But even if the majority's view of
the law is correct, the rule of SEC v. Chenery, 318 U.S. 80
(1943), mandates a remand to the Commission. I therefore
dissent from the majority's denial of review.

I.

The Secretary's exercise of jurisdiction was proper if RNS
was engaged at the site in "the work of preparing coal." 30
U.S.C. § 802(h)(1). Title 30 U.S.C. § 802(i) defines the "work
of preparing the 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." It is undisputed that RNS "loaded" coal at
the site for transportation to the Cambria facility.

In my view, the Commission believed that it was required
by our decision in Pennsylvania Electric Co. v. FMSHRC,
969 F.2d 1501 (3d Cir. 1992) ("Penelec"), to hold that RNS
was engaged in the "work of preparing the coal" at the site
if RNS performed at the site any of the activities listed in 30
U.S.C. § 802(i), regardless of the circumstances. The
Commission held that "[u]nder the functional analysis of
Penelec, each of the activities listed in [§ 802(i)] subjects
anyone performing that activity to the jurisdiction of the
Mine Act . . . ." (App. 18a-19a) (emphases added) (quoting
Air Products and Chemicals, Inc. v. Secretary of Labor,
MSHA, 15 FMSHRC 2428, 2435, 1993 WL 525480, aff'd,
37 F.3d 1485 (3d Cir. 1994) (Table)). The Commission did
not ask whether RNS loaded coal on one occasion or on a

                    12
daily basis, or whether such loading was the type of "work
of preparing such coal as is usually done by the operator of
the coal mine." The Commission's decision was based solely
on the fact that RNS loaded coal at the site. Indeed, the
Commission noted that RNS's activities were "de minimis,"
App. 19a; one of the five members expressly stated that she
concurred "solely because [she was] constrained to [do so]
by the opinion" of this court in Penelec (App. 21a); and
another member "question[ed] the wisdom of MSHA's
expenditure of scarce government resources to inspect a
pile of coal waste that has lain dormant for decades where
the only activities are loading and hauling to a power plant
for further processing." (App. 19a)

The Commission's belief that anyone who performs any
listed activity under any circumstances is subject to MSHA
jurisdiction becomes even clearer when one examines Air
Products, the case that the Commission quoted in
articulating its holding in the instant case. See App. 19a. In
Air Products, the Commission held that a company was
engaged in "the work of preparing coal" because it
"perform[ed] some of the coal preparation activities listed in
[§ 802(i)]." 15 FMSHRC at 2431. One member stated that
she was constrained to concur by Penelec, which she
interpreted to mean that "each of the activities listed in
[§ 802(i)] wherever and by whomever performed and
irrespective of the nature of the operation, subjects anyone
performing that activity to the jurisdiction of the Mine Act
. . . ." Id. at 2435 (emphasis added). A dissenting member
would have rejected Penelec, which she viewed as holding
that "a coal consumer becomes a coal preparation facility
. . . by engaging in any of the activities listed in [§ 802(i)].
. . . The Third Circuit's decision in effect requires MSHA to
inspect all facilities performing any of the coal preparation
activities listed under [§ 802(i)]." Id. at 2437-38.

As I explain below, I disagree with the Commission's
interpretation of Penelec. For present purposes, however,
the important point is that the majority disagrees with the
Commission's view of the law as well. Rather than holding,
as the Commission did, that the mere performance of any
listed activity is sufficient to subject anyone performing it to
the Mine Act, the majority interprets the "as is usually

                     13
done" clause to require that such activity "usually occur[ ]"
at the site in question. Maj. Op. at 3. In the majority's view,
the "as is usually done" clause "explains that the work of
the coal mine is the work that is usually done in that
particular place." Maj. Op. at 6. The majority thus relies on
the fact that "at the Site, coal is in fact loaded, at a place
regularly used for that purpose . . . ." Maj. Op. at 4
(emphasis added).

Whether or not this is the correct interpretation of the "as
is usually done" clause (I believe it is not), it is not the
interpretation upon which the Commission relied. As a
court reviewing the decision of an administrative agency,
we may not uphold the Commission's decision "on grounds
other than those relied upon by the agency." National
Railroad Passenger Corp. v. Boston and Maine Corp., 503
U.S. 407, 420 (1992) (citing SEC v. Chenery Corp., 318 U.S.
80, 88 (1943)). If the Commission reached a result that we
believe to be correct, but relied upon an incorrect view of
the law in so deciding, we are obligated to remand to allow
the Commission to reconsider its decision under the correct
legal standard. E.g., Slaughter v. NLRB, 794 F.2d 120, 128
(3d Cir. 1986).

Here, in order to escape Chenery, the majority
mischaracterizes the Commission's decision. The majority
notes that RNS "asserts that the Commission mistakenly
made a per se ruling that whenever loading is present at a
site at which coal is handled, that site is a mine." Maj. Op.
at 4. This is, in fact, RNS's principal argument. The
majority then declares that "[w]e do not find that the
Commission has made such a per se ruling. Instead, the
Commission took note that at the Site, coal is in fact
loaded, at a place regularly used for that purpose .. . ."
Maj. Op. at 4. This is simply wrong: the Commission did
not even hint that its decision was based to any extent on
the fact that loading regularly occurred at the site.1 As I
_________________________________________________________________

1. The majority points out (Maj. Op. at 5 n.1) that the Commission noted
that RNS had entered into a "long-term contract." It is plainly
unreasonable to read this passing reference to mean that the
Commission's decision rested on the fact that loading occurred regularly
at the site.

                     14
explained above, the Commission based its decision on the
bare fact that RNS performed a listed activity at the site. In
finding MSHA jurisdiction, the Commission gave no
indication that it believed that anything other than that
bare fact was required.

I therefore believe that the majority opinion denies RNS's
petition for a reason not relied upon by the Commission.
Because this court lacks the power to do what the majority
has done, I would be obligated to dissent even if I agreed
with the majority's view of the law.2

II.

In addition to diverging improperly from the
Commission's rationale, the majority's holding is incorrect
_________________________________________________________________

2. This is not a case in which the Commission came to "a conclusion to
which it was bound to come as a matter of law, albeit for the wrong
reason." See e.g., United Video, Inc. v. Federal Communications
Commision, 890 F.2d 1173, 1190 (D.C. Cir. 1989). In order to uphold
MSHA jurisdiction under the majority's interpretation, a determination
must be made that loading is "usually" done at the site in question. It
may well be that loading occurred at the site with some frequency from
May 1995 through June 16, 1995, when the challenged citations were
issued, but I cannot say based on the record that the Commission was
bound to come to the conclusion that loading was an activity "usually"
done at the site. We do not know for sure what occurred between May
1995 and June 16, 1995; nor is it clear that the Commission would be
bound to limit its consideration to this brief period. That the agency
would most likely reach the same decision on remand is no reason not
to follow Chenery and its progeny. As we explained in Slaughter:

Where the agency has rested its decision on an unsustainable
reason, the court should generally reverse and remand even though
it discerns a possibility, even a strong one, that by another course
of reasoning the agency might come to the same result. . . . [T]he
process, even though it may appear wasteful as regards the case at
hand, is important for the proper execution of the legislative will,
since proceeding on the right path may require or at least permit the
agency to make qualifications and exceptions that the wrong one
would not.

794 F.2d at 128 (quoting Friendly, Chenery Revisited: Reflections on
Reversal and Remand of Administrative Orders, 1969 Duke L.J. 197,
222-23).

                    15
on its own terms. As previously noted, the site at issue was
a "mine" if RNS was there engaged in "the work of
preparing coal," 30 U.S.C. § 802(h)(1), which is defined to
mean:

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).

In interpreting this definition, it is important to decide
whether the "as is usually done" clause modifies only the
phrase that it immediately follows ("such other work of
preparing such coal") or whether it also modifies all of the
numerous specific activities ("breaking, crushing, sizing,"
etc.) that come before. It seems to me that the most natural
reading of the language of this provision is that the "as is
usually done" clause modifies only the phrase"such other
work of preparing such coal," but this interpretation would
extend MSHA jurisdiction to unreasonable lengths. For
example, under this interpretation "storing" coal would
always constitute the "work of preparing the coal," and
therefore any site where "storing" occurred (including,
presumably, any basement with a coal bin) would be a
"mine" subject to MSHA jurisdiction. The MSHA would be
required to inspect the basement twice per year (and could
do so without a warrant). See 30 U.S.C. §§ 813(a), 814(d);
Donovan v. Dewey, 452 U.S. 594 (1981). Such a result
would, in my view, be "demonstrably at odds" with
congressional intent. Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 571 (1982). Indeed, even the Secretary
acknowledges that MSHA jurisdiction does not extend this
far. See Sec'y Br. at 12 n.3 ("to establish coal preparation
activity . . . every . . . activity specifically enumerated in
[§ 802(i)] must be activity `such as is usually done by the
operator of a coal mine.' "). See also id. at 13.

In addition, interpreting the "as is usually done" clause
as modifying only the phrase "such other work of preparing
the coal" would lead to results that conflict with our prior
cases. It is well settled in this circuit and elsewhere that

                      16
"the delivery of completely processed coal to the ultimate
consumer" does not fall within the Act. Penelec, 969 F.2d at
1504 (citing Stroh v. Director, OWCP, 810 F.2d 61, 64 (3d
Cir. 1987)). Accord United Energy Services, Inc. v. Fed. Mine
Safety & Health Adm., 35 F.3d 971, 975 (4th Cir. 1994).
But this proposition cannot stand if the mere performance
of any activity listed in § 802(i) is enough to bring the site
within MSHA jurisdiction. As noted, "storing" is among the
specific activities listed, and ultimate consumers who
receive deliveries of fully processed coal almost always store
at least some of that coal before burning it. It is noteworthy
that the Secretary appears to recognize the danger of such
a conflict. Her brief expressly requests the adoption of a
rule of law limiting § 802(i) to activities involving coal that
"has not yet reached a form that is completely processed
and fully ready for its ultimate use." Sec'y Br. at 24.

For these reasons, I would hold -- contrary to the
position that the Commission seems to me to have taken in
its decision in this case -- that, in order to constitute the
work of preparing coal, any activity listed in 30 U.S.C.
§ 802(i) must be an activity such "as is usually done by the
operator of the coal mine."

It is thus important to determine what the "as is usually
done" clause means. The majority here takes the position
that the clause means simply that the activity in question
("breaking, crushing, sizing," etc.) must be an activity that
is regularly performed at the site. See Maj. Op. at 6 ("The
sentence [in 30 U.S.C. § 802(i)] simply explains that the
work of the coal mine is the work that is usually done in
that particular place.").

I strongly disagree with this interpretation, which was not
advocated by either party in this case, and is not supported
by any cited judicial or administrative authority. This
interpretation again extends MSHA jurisdiction to an
unreasonable degree that Congress cannot have intended.
According to the majority's interpretation, any place where
any activity listed in 30 U.S.C. § 802(i) regularly occurs
must be a coal mine. Therefore, any place where coal is
regularly stored must be a coal mine, and consequently the
basement with the coal bin must be subjected to MSHA
jurisdiction, provided only that such storage is an activity

                    17
"that is usually done in that particular place." Maj. Op. at
6.3

RNS offers a more reasonable interpretation of the "as is
usually done" clause. RNS contends that "as is usually
done by the operator of the coal mine" means as is done by
the typical coal mine operator. Thus, under this
interpretation, "storing" must be the type of storing that is
done by the typical coal mine operator -- and not by the
homeowner with a basement bin.

The majority rejects this argument based on a
punctilious interpretation of word "the" in the phase
"operator of the coal mine." 39 U.S.C.§ 802(i) (emphasis
added). The majority writes:

It is noteworthy that this sentence does not say,[work]
usually done by the operator of a coal mine, as RNS
states in its brief. If it did, one might have to compare
the activities at the alleged coal mine with those of a
typical, paradigmatic, usual coal mine. The sentence as
it actually appears in the statute, however, does not
help RNS. It simply explains that the work of the coal
mine is the work that is usually done in that particular
place. The fact that the Site is perhaps an
unconventional coal mine does not defeat its status as
a coal mine for the purposes of section 802.

Maj. Op. at 6. (emphasis and emendation in original)
(citation omitted).

The majority is quick to take RNS to task for changing
the statutory "the" into an "a," but the majority overlooks
the fact that RNS has plenty of company. Many cases,
including several from this court, have written this clause
with an "a" instead of a "the." See Penelec, 969 F.2d at
1503; Hanna v. Director, OWCP, 860 F.2d 88, 92 (3d Cir.
1988); Wisor v. Director, OWCP, 748 F.2d 176, 178 (3d Cir.
_________________________________________________________________

3. The majority states that a basement coal bin is not subject to MSHA
jurisdiction because "the MSHA has jurisdiction only over locations in
which, inter alia, coal undergoes processing that prepares the coal for its
ultimate use." Maj. Op. at 8 n.2. But how the majority can square this
rule with its interpretation of the "as is usually done" clause is a
mystery.

                    18
1984); Fox v. Director, OWCP, 889 F.2d 1037, 1040 (11th
Cir. 1989); Air Products, 15 FMSHRC at 2431; Penelec, 969
F.2d at 1509 (Mansmann, J., dissenting) ("the preparation
at issue must be of a type usually performed by a coal mine
operator") (citing Secretary of Labor v. Pennsylvania Electric
Co., 11 FMSHRC 1875, 1880 (1989) and Secretary of Labor
v. Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 7 (1982)).4
Moreover, the Secretary's brief in this case treats § 802(i) as
if it read "a" instead of "the". See Sec'y Br. at 12 n.3 ("Both
the Secretary and the Commission acknowledge that to
establish coal preparation activity, loading, like every other
activity specifically enumerated in [§ 802(i)] must be activity
`such as is usually done by the operator of a coal mine.");
id. at 13.5 In addition, the Commission in Air Products
wrote this provision as "as is usually done by the operator
of [a] coal mine." 15 FMSHRC at 2430-31 (emendation in
original). All of these authorities, it seems to me, support
RNS's interpretation. All of them appear tacitly to
acknowledge that, although Congress used the word "the,"
its intended meaning would have been more clearly
expressed had it used the word "a." While this
interpretation may not be the most literal reading of the
statutory language, it seems to me to represent the best we
can do with the unfortunately worded provision that
confronts us.

Whether RNS's activities in loading the coal and
transporting it to Cambria are the type of work usually
done by a coal mine operator is a factual question that the
Commission has not addressed. I would therefore grant
RNS's petition for review and remand to allow the
Commission to decide this question.
_________________________________________________________________

4. In Oliver M. Elam, one of the cases cited by Judge Mansmann in her
Penelec dissent, the Commission opined 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." 4 FMSHRC at 7.
5. While the Secretary's brief does not say so in so many words, her
unacknowledged changing of the "the" to "a" is consistent with, indeed
required by, her recognition that the Act does not extend to activities
involving coal that is "completely processed and fully ready for its
ultimate use." Sec'y Br. at 24.

                    19
III.

As explained in Part I, the Commission appears to have
believed that it was compelled by Penelec to hold as it did.
I do not think that its view was warranted, and I believe my
analysis to be consistent with the terse discussion of the
relevant question in the majority opinion in that case. In
Penelec, the court held 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.' "
969 F.2d at 1503. Thus, contrary to the Commission's
apparent perception, the Penelec court did utilize the "as is
usually done" language in its holding. Indeed, it quoted the
clause as including "a" instead of "the". Moreover, the
Penelec court was not presented with the question whether
the statute reaches anyone who performs any listed activity
under any circumstances. Rather, the head drives at issue
in Penelec moved raw coal to a processing plant where it
underwent precisely the type of treatment that would
constitute coal preparation in the ordinary sense of the
term. Penelec is thus wholly consistent with the view of the
"as is usually done" clause as limiting the definition of coal
preparation to those activities usually done by the operator
of a coal mine as that term is generally understood. In
addition, the Penelec court expressly reaffirmed the prior
statement in Stroh that "the delivery of completely
processed coal to the ultimate consumer" falls outside the
statute. Id. at 1504. As I have shown, the Commission's
reading of Penelec is inconsistent with that proposition.

IV.

Accordingly, I would hold that the Commission made an
error of law in holding that any person who performs any
activity listed in § 802(i) under any circumstances is subject
to the Mine Act. I would hold, in contrast, that the
definition of the "work of preparing the coal" embraces the
performance of activities, whether or not listed in § 802(i),
only if they are the type of work usually done by a coal
mine operator, as that term is commonly understood. I
would grant RNS's petition for review and remand to permit
the Commission to reevaluate this case under that legal
standard. Even if I am wrong and the correct legal standard

                    20
is, as the majority holds, that any person who performs any
listed activity under any circumstances is subject to the
Mine Act, so long as he performs such activity on a regular
basis, I believe it is perfectly clear that the Commission did
not base its decision on that standard. Therefore, even if
the majority's view of the law is correct, the proper
disposition is a remand under Chenery.6

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

6. In addition to my disagreements with the majority discussed in the
text, I also note that the majority fails to explain or support its
suggestions that the site might come within the statute as a "custom
coal preparation facilit[y]," Maj. Op. at 8, or a "land[ ] . . . resulting
from[ ] the work of extracting such minerals from their natural deposits
. . . ." Maj. Op. at 8 (quoting 30 U.S.C. § 802(h)(1)).

                    21
