<DOC>
[DOCID: f:l96-158r.wais]

 
OHIO VALLEY TRANSLOADING COMPANY
July 29, 1997
LAKE 96-158-R


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                          July 29, 1997

OHIO VALLEY TRANSLOADING           :     CONTEST PROCEEDINGS
  COMPANY,                         :
               Contestant          :
                                   :
          v.                       :     Docket No. LAKE 96-158-R
                                   :     Order No. 3500861; 8/22/96
SECRETARY OF LABOR,                :
   MINE SAFETY AND HEALTH          :     Docket No. LAKE 96-159-R
  ADMINISTRATION (MSHA),           :     Order No. 3500862; 8/22/96
               Respondent          :
                                   :     Mine ID No. 33-00000
                                   :     Powhatan Transportation Center


                            DECISION

Appearances:  William Althen, Esq., Smith, Althen and Heenan,
              Washington, D.C.,
              for the Contestant;
              Maureen M. Cafferkey, Esq., Office of the Solicitor,
              U.S. Department of Labor, Cleveland, Ohio, for the
              Respondent.

Before:  Judge Melick

     These consolidated Contest Proceedings are before me
pursuant to Section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801, et seq., the "Act," to challenge a
citation and a "failure to abate" withdrawal order issued by the
Secretary of Labor to the Ohio Valley Transloading Company
(Transloading Company).  The Transloading Company is charged with
violations of Section 103(a) of the Act for twice denying entry
to an inspector for the Mine Safety and Health Administration
(MSHA) at its Powhatan Transportation Center (PTC).[1]  The
underlying issue in these cases is whether the Secretary has
jurisdiction under the Act to inspect the PTC.  It is stipulated
that if the Secretary had such jurisdiction on the dates in
question then the citation and order at issue should be
affirmed.[2]

     It is not disputed that in order to establish jurisdiction
the Secretary must show that the PTC was, during relevant times,
a "coal mine" under the Act.  Under Section 3(h)(2) of the Act,
coal mine "means an area of land and all structures, facilities,
machinery, tools, equipment, sheds, slopes, tunnels, excavations,
and other property, real or personal, placed upon, under, or
above the surface of such land by any person, used in, or to be
used in, or resulting from, the work of extracting in such area
bituminous coal, lignite or anthracite from its natural deposits
in the earth by any means or method, and the work of preparing
the coal so extracted, and includes custom coal preparation
facilities".  More particularly, at issue herein, is whether the
PTC was involved in "work of preparing the coal".  The term "work
of preparing the coal" is defined in Section 3(i) of the Act 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".

     The activities occurring at the PTC during relevant times
are not in dispute.  The PTC is located on an area of land
adjacent to the Ohio River.  Bituminous coal, which has already
passed through a processing plant,  is received at the facility
by rail, truck and river barge.  No breaking,  sizing, crushing,
washing, or drying occurs at the PTC and, indeed there is no
physical change to the coal.  Most of the coal received at the
PTC comes from the Powhatan No. 6 mine.  This coal is received
either by train or truck and is dumped in a hopper.  It is then
conveyed by belt directly to barges in the Ohio River where it is
loaded and shipped to customers, primarily electric utilities.

     Coal is also received at the PTC from third party sources by
truck and river barge.  Coal delivered by river barge is
transferred by crane into a hopper and further transported by
conveyor to a stacker tube.  From the stacker tube the coal is
stored in a stockpile and, when needed, this coal is placed onto
a belt.  Powhatan No. 6 Coal may also be transported at the same
time on the same belt and loaded onto river barges.  Third party
coal arriving by truck may also be simultaneously dumped with
Powhatan No. 6 coal onto the conveyor and loaded onto river
barges for delivery to customers.

     According to Richard Rice, manager of marketing and sales
for the Ohio Valley Coal Company (owner of the Powhatan No. 6
Mine) and Vice President of the American Coal Sales Company
(owner of the PTC), with the exception of coal from the Maple
Creek Mine, the third party coal is so poor in quality it would
not meet the contract specifications for its utility customers.
This third party coal must therefore be admixed with Powhatan No.
6 coal. (Tr. 133-134).  According to Rice, the third party coal
(with the exception of Maple Creek  coal) is purchased for
"economic reasons".  It is cheaper than Powhatan No. 6 coal.
Thus the cheaper coal from third party sources is loaded together
with the more expensive Powhatan No. 6 coal to improve profits
(Tr. 133-136).  Rice further noted that under the agreements
between the Ohio Valley Coal Company and its utility customers,
PTC cannot ship third party coal alone.  Accordingly, Foreman
Visnic will adjust by computer the volume of coal dumped onto the
conveyor from third party sources based on the amount of other
coal coming into the PTC.  Visnic therefore decides how much
third party coal to load onto the conveyor from the stockpile and
to be loaded onto the barges for delivery.  Rice told Assistant
MSHA District Manager Robert Crumrine sometime in 1995 that "you
can call it mixing if you want to" in reference to this
operation.  (Tr. 227).

     Robert Murray, President of the Transloading Company, opined
that no preparation occurs at the PTC.  In Murray's opinion coal
is not mixed or co-mingled but is merely conveyed or transloaded.
He maintains there is no intent to process coal.

     It is therefore undisputed that the PTC performs the
functions of loading bituminous coal onto barges at its Ohio
River facility and storing coal received from third party sources
at a stockpile before further transporting this coal by conveyor
to  river barges.  Recently in RNS Services, Inc. v. Secretary of
Labor and FMSHRC, No. 96-3245 (3rd Cir., May 29, 1997), the
Circuit Court reaffirmed that the storage and loading of 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.  See also
Pennsylvania Electric Company v. FMSHRC, 969 F.2d 1501(3rd Cir.,
1992).

     The undisputed evidence in this case also clearly
demonstrates that the "mixing" of bituminous coal has taken place
at the PTC within the meaning of Section 3(i) of the Act.  The
term "mix" is defined in Webster's Third New International
Dictionary (unabridged), 1986, as synonymous  with "mingle, co-
mingle, blend, merge", etc.  The merging or co-mingling of third
party coal with Powhatan No. 6 coal at the PTC therefore clearly
constitutes "mixing".  Under the circumstances the PTC is clearly
within the jurisdiction of the Act and MSHA has the authority
under Section 103(a) of the Act to enter and conduct inspections
at that facility.

     The Commission in Secretary v. Oliver M. Elam, Jr. Company,
4 FMSHRC 5 (January 1982) also found, in determining Mine Act
jurisdiction, that a facility would more likely come within the
Act's jurisdiction if the coal was prepared by the subject
facility to meet customers' specifications or to render the coal
fit for a particular use.  In this case it is acknowledged that
third party coal (except for that received from the Maple Creek
Mine) was of such poor quality as not to be capable in itself to
meet the contract specifications of the utility customers.
Accordingly, it was necessary to combine that coal with coal from
the Powhatan No. 6 mine to improve the quality of the coal to
meet the specifications of the utility power plants.  For this
additional reason it is clear that the PTC was a "mine" within
the meaning of the Act and that MSHA therefore had jurisdiction
to inspect that facility.

                              ORDER

     Citation No. 3500861  and Order No. 3500862 are affirmed and
these Contest Proceedings are dismissed.







                                   Gary Melick
                                   Administrative Law Judge
                                   703-756-6261


Distribution:

William I. Althen, Esq., and
William K. Doran, Esq., Smith,
Heenan & Althen, 1110 Vermont Ave.,
N.W., Washington, D.C.  20005
(Certified Mail)

Maureen M. Cafferkey, Esq., Office
of the Solicitor, U.S. Dept. of
Labor, 881 Federal Bldg., 1240 East
Ninth Street, Cleveland, OH 44199
(Certified Mail)

                                   /mca


**FOOTNOTES**

     [1]: Section 103(a) of the Act provides, in relevant part,
that "[f]or the purpose of making any inspection or investigation
under this Act, the Secretary,  . . . with respect to fulfilling
his responsibilities under this Act, or any authorized
representative of the Secretary . . .  shall have a right of
entry to, upon, or through any coal . . . mine."

     [2]: The citation at bar, No. 3500861, charges as follows:

     On August 22, 1996, Robert Visnic, Transportation Manager,
     refused to allow Joseph F. Facello and William A. McGilton,
     authorized representatives of the Secretary, entry into the
     Powhatan Transportation Center for the purpose of conducting
     an inspection of the facility pursuant to Section 103(a) of
     the Act.  Mr. Visnic stated that MSHA was being denied entry
     based on the operator's belief that this facility is not
     subject to MSHA jurisdiction.

     The order at bar, No. 3500862, charges as follows:

     On August 22, 1996, after the expiration of a reasonable
     time allowed to comply , Robert Visnic, Transportation
     Manager, continued to deny Joseph A. Fellico and William A.
     McGilton, authorized representatives of the Secretary, the
     right of entry into the Powhatan Transportation Center, for
     the purpose of conducting an inspection of the facility in
     accordance with requirements of Section 103(a) of the Act.