1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"RNS Ser Inc v. Secretary Labor" (1997). 1997 Decisions. Paper 115.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/115
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 CoGeneration 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 lowgrade 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