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. e du/thir dc ir c uit_1997/115Filed 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 Commis sion ("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 t o be present, the governing statute requires that coal b e processed at the Site in acts constituting "the wor k of preparing the coal." 30 U.S.C. § 802(I)(1988). RNS contends that the MSHA (and the Commission) lack jurisdictio n because the Site is not one at which "the work of p reparing
the coal" occurs and the material handled at the Si te is not

2pure 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 Commissi on. The case arises out of two citations issued by the Secr etary of Labor (acting through the MSHA) to RNS under Title I, Section 104(a) of the Federal Mine Safety and Healt h Act, 30 U.S.C. § 814(a)("the Act" or "the Mine Act"). Th e citations alleged that RNS failed to record the results of th e daily examination of the Site, in violation of 30 C.F.R. § 77.1713(c), and failed to have a ground control p lan for the Site, in violation of the safety standard at 30 C.F.R. § 77.1000. RNS did not contest the facts of the vio lations as cited, but instead challenged the Commission's juri sdiction over the Site. RNS asserted that MSHA lacked jurisd iction
because the Site was not a "mine" as that term is d efined 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. § 81 5(a).

After conducting an expedited evidentiary hearing pursuant to 30 U.S.C. § 815(d), an administrative l aw judge agreed with petitioners. The ALJ held that the Site was not a "mine" and, therefore, not subject to MSHA jurisd iction. On petition to the Commission for discretionary rev iew pursuant to 30 U.S.C. § 823(d)(1)(B), the Commissio n reversed the decision of the ALJ and held that the loading and transportation of coal that occurred at the Sit e 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 pre paring 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 d elineates activities that constitute "the work of preparing t he 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 c oal 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 pr ocessing facility is an activity within the Mine Act, but no t the delivery of completely processed coal to the ultima te consumer." 969 F.2d 1501, 1504 (3d Cir. 1992)(citin g 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, a nd 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 t he 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 Worke rs' 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 Fourt h 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 functio n that occurs at the Site, is an activity specifically lis ted in the Act as constituting "the work of preparing the coal." 3 0 U.S.C. § 802(I). The petitioner asserts that the Commissio n mistakenly made a per se ruling that whenever loading is present at a site at which coal is handled, that si te 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 regula rly used for that purpose, in preparation for further processing . The

4Commission concluded that the plain meaning of the

statute and the relevant case law made clear that t hese
activities were sufficient to render the situs of t hese
activities a "mine."1

___________________________________________________ ______________

1. We hold that the only reasonable interpretation of the Commission's holding in the instant case is that MSHA appropriat ely exercises jurisdiction over a location in which coal is loade d in preparation for further processing. In its decision, the Commission noted that the processing occurred at the Site "[p]ursuant to a lo ng-term contract." App. at 524. The Commission also recited the releva nt statutory language, "as is usually done by the operator of th e coal mine." App. at 527. Further, the Commission framed the key questio n 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 C ommission considered only the work that "is usually done by the operator of the coal mine," i.e., "loading." App. at 527. In short, the Commiss ion found that a limited range of coal-processing activities regular ly 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), w e believe that the Commission's failure to explicitly state i n one sentence that the MSHA had jurisdiction because "loading" was the act ivity 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 t hat federal courts not "intrude upon the domain which Congress has exclusi vely entrusted to an administrative agency" in situations where"an or der is valid only as a determination of policy or judgment which the age ncy alone is
authorized to make and which it has not made." In t he instant case, no factual or other determination that Congress sought to "exclusively entrust" to the Commission is being intruded upon b y the courts. Rather, 30 U.S.C. § 816(a), "Judicial Review of Com mission Orders," specifically explains that

the court shall have exclusive jurisdiction of the proceeding and the questions determined therein, and shall have the po wer to make and enter upon the pleadings, testimony, and procee dings set forth in such record a decree affirming, modifying, or se tting aside, in whole or in part, the order of the Commission and enforcing the same
to the extent that such order is affirmed or modifi ed. . . . The findings of the Commission with respect to question s of fact , if supported by substantial evidence on the record con sidered as a whole, shall be conclusive.

5The Commission was cognizant that the coal refuse i s

loaded at the Site for delivery to "the Cambria CoGeneration Facility (Cambria) in Ebensburg, Pennsyl vania, 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 ulti mate consumer. The storage and loading of the coal is a critical step in the processing of minerals extracted from t he earth in preparation for their receipt by an end-user, an d 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 Cambri a plant to be "the work of preparing the coal." Air Product s & 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 m ay be readied for subsequent processing at Cambria also constitutes "the work of preparing the coal."

The list of items indicative of "the work of prepar ing the coal" enumerated in the Mine Act is by no means exc lusive. This is demonstrated by the additional phrase "and such other work of preparing such coal as is usually don e by the operator of the coal mine." It is noteworthy that t his 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 comp are 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 t he work that is usually done in that particular place. The fact that the Site is perhaps an unconventional coal mine doe s not defeat its status as a coal mine for the purposes o f 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, th e ALJ

6made a factual finding that "[t]esting of material removed

from the pile indicates that it shows the character istics of coal." Op. of the ALJ, RNS App. at 8. We have no re ason to believe that the ALJ's findings were clearly errone ous.

In addition, the statute gives no indication that i t 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 Preparat ion 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 dredg ed
from a riverbed came within the Act. It was immater ial that the company processed "dredged refuse": "[T]he comp any's process of separating from the dredged refuse a bur nable product . . . which was then sold as a low-grade fu el," placed that work within the definition of "coal pre paration" and thus made the operation a "mine." Id.

C. "Coal or Other Mine"

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

(A) an area of land from which minerals are extract ed in nonliquid form . . . , (B) private ways and road s 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 resultin g from, the work of extracting such minerals from the ir 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 prepar ing coal or other minerals, and includes custom coal preparation facilities . In making a determination of what constitutes mineral milling for purposes of th is chapter, the Secretary shall give due consideration to the convenience of administration resulting from th e delegation to one Assistant Secretary of all author ity

7with 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 au thorize the Secretary to assert jurisdiction over any lands integral to the process of preparing coal for its ultimate c onsumer.2 As the Commission noted in its decision reversing t he ALJ, "[t]he definitions of coal mine and coal preparatio n in sections 3(h) and 3(I) [codified at 30 U.S.C. §§ 80 2(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 w ithin 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 serv es a specialized purpose in a larger coal-processing ope ration. The sweeping inclusion of "lands," "slopes," and "o ther property" further indicates Congress's plain intent ion that the Commission have broad jurisdiction over locatio ns at which coal is processed.

Finally, we note that the Site may independently fa ll under the jurisdiction of the MSHA as a "land[ ] .

. . resulting from[ ] the work of extracting such miner als from their natural deposits in nonliquid form . . . ." 3 0 U.S.C.

___________________________________________________ ______________

2. The dissent, with its "basement bin" example, ov erlooks 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 Pe nelec , 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, t he "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 fo rm 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 argu ment 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 ca nons of statutory construction teach us to construe such remedial legislation broadly, so as to effectuate i ts purposes." Stroh , 810 F.2d at 63. As set forth in section 101, "Congressional findings and declaration of pur pose," the Mine Act was passed in large part to bolster th e powers of the federal government to regulate the effects o f mining operations on health and safety:

Congress declares that--

(a) the first priority and concern of all in the co al 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 promulg ate 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 healt h and safety conditions at mines that, as was stated in A ir
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 surfac e 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 th e composition and circulation of dust at the Site. Tr ipping and stumbling are additional hazards. Audio Tape of Oral

9Argument (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 n ot read this statute to be facially ambiguous concerning th e 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 sou rce, appellants must carry a high burden: "[C]lear statu tory language place[s] an extraordinarily heavy burden o n the party who seeks to vary it by reference to legislat ive 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 extraord inary showing of contrary intentions" justifies altering the plain meaning of a statute.).

Here, a look at the legislative history does not bo lster appellant's position; on the contrary, it confirms the position of the Secretary of Labor. The Senate repo rt indicates that a principal reason for passing the A ct 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 enumerate d in the definition of mine under the [predecessor] Coal Act. It has always been the Committee's express intentio n that these facilities be included in the definition of mine and subject to regulation under the Act , and the Committee here expressly enumerates these facilitie s within the definition of mine in order to clarify i ts intent. . . . [The Committee is greatly concerned t hat [at the time of a recent accident affecting an unstable dam] the scope of the authority of the Bureau of Mi nes . . . was questioned. Finally, the structures on th e 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 o f `mine'. The Committee notes that there may be a nee d to resolve jurisdictional conflicts, but it is the

10Committee's intention that what is considered to be a

mine and to be regulated under this Act be given th e broadest possibl[e] interpretation, and it is the i ntent 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 histor y 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 t he Order of the Federal Mine Safety and Health Review Commis sion
will be denied.

Costs taxed against petitioner.

11ALITO, Circuit Judge , dissenting:

As I interpret the decision of the Federal Mine Saf ety and Health Review Commission, it held that RNS was enga ged in the "work of preparing the coal" at the site in question because RNS there performed one of the specific act ivities 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 ho lds that RNS was engaged in the "work of preparing the coal" at the site because it there performed a listed activity o n a regular
basis . I disagree with both the Commission's and the majority's view of the law. But even if the majorit y'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 ther efore 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 c oal." 30 U.S.C. § 802(h)(1). Title 30 U.S.C. § 802(i) define s the "work of preparing the coal" as "the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loa ding of bituminous coal, lignite, or anthracite, and such o ther work of preparing such coal as is usually done by the op erator 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 req uired by our decision in Pennsylvania Electric Co. v. FMS HRC

, 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. T he Commission held that "[u]nder the functional analys is of
Penelec , each of the activities listed in [§ 802(i)] subjects

anyone performing that activity to the jurisdiction of th e Mine Act . . . ." (App. 18a-19a) (emphases added) ( quoting Air Products and Chemicals, Inc. v. Secretary of La bor,
MSHA , 15 FMSHRC 2428, 2435, 1993 WL 525480, aff'd

, 37 F.3d 1485 (3d Cir. 1994) (Table)). The Commissio n did
not ask whether RNS loaded coal on one occasion or on a

12daily basis, or whether such loading was the type o f "work

of preparing such coal as is usually done by the op erator of
the coal mine." The Commission's decision was based solely
on the fact that RNS loaded coal at the site. Indee d, the
Commission noted that RNS's activities were "de min imis," 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 inspe ct a pile of coal waste that has lain dormant for decade s where the only activities are loading and hauling to a po wer plant for further processing." (App. 19a)

The Commission's belief that anyone who performs an y 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 activitie s listed in [§ 802(i)]." 15 FMSHRC at 2431. One member stated t hat she was constrained to concur by Penelec , which she interpreted to mean that "each of the activities li sted 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 fa cility . . . by engaging in any of the activities listed i n [§ 802(i)]. . . . The Third Circuit's decision in effect requir es MSHA to inspect all facilities performing any of the coal p reparation 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 h olding, as the Commission did, that the mere performance of any listed activity is sufficient to subject anyone per forming it to the Mine Act, the majority interprets the "as is us ually

13done" clause to require that such activity "usually occur[ ]" at the site in question. Maj. Op. at 3. In the majo rity's view, the "as is usually done" clause "explains that the work of the coal mine is the work that is usually done in t hat 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 o f the "as is usually done" clause (I believe it is not), it i s not the interpretation upon which the Commission relied. As a court reviewing the decision of an administrative a gency, we may not uphold the Commission's decision "on gro unds other than those relied upon by the agency." Nation al 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 maj ority
notes that RNS "asserts that the Commission mistake nly 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. T he 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 f act 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 ex tent on the fact that loading regularly occurred at the sit e.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." I t is plainly unreasonable to read this passing reference to mean that the
Commission's decision rested on the fact that loadi ng occurred regularly
at the site.

14explained above, the Commission based its decision on the

bare fact that RNS performed a listed activity at t he site. In finding MSHA jurisdiction, the Commission gave no indication that it believed that anything other tha n that bare fact was required.

I therefore believe that the majority opinion denie s RNS's petition for a reason not relied upon by the Commis sion. Because this court lacks the power to do what the m ajority 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 i ncorrect

___________________________________________________ ______________

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, albe it 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 interpretati on, 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 t he 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 occu rred between May 1995 and June 16, 1995; nor is it clear that the Co mmission would be bound to limit its consideration to this brief peri od. 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 unsu stainable reason, the court should generally reverse and rema nd even though it discerns a possibility, even a strong one, that by another course of reasoning the agency might come to the same resu lt. . . . [T]he process, even though it may appear wasteful as rega rds the case at hand, is important for the proper execution of the legislative will, since proceeding on the right path may require or a t least permit the agency to make qualifications and exceptions that t he wrong one
would not.

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

15on 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 de fined to

mean:

the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of prep aring 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 on ly the phrase that it immediately follows ("such other wor k of preparing such coal") or whether it also modifies a ll of the numerous specific activities ("breaking, crushing, sizing," etc.) that come before. It seems to me that the mos t natural reading of the language of this provision is that t he "as is usually done" clause modifies only the phrase"such other work of preparing such coal," but this interpretati on would extend MSHA jurisdiction to unreasonable lengths. F or example, under this interpretation "storing" coal w ould always constitute the "work of preparing the coal," and therefore any site where "storing" occurred (includ ing, 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 (an d 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 Contractor s, Inc.

, 458 U.S. 564, 571 (1982). Indeed, even the Secretar y acknowledges that MSHA jurisdiction does not extend this
far. See Sec'y Br. at 12 n.3 ("to establish coal preparatio n activity . . . every . . . activity specifically en umerated in [§ 802(i)] must be activity `such as is usually don e 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 pr eparing
the coal" would lead to results that conflict with our prior
cases. It is well settled in this circuit and elsew here that

16"the delivery of completely processed coal to the u ltimate

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 perfo rmance of any activity listed in § 802(i) is enough to bri ng the site within MSHA jurisdiction. As noted, "storing" is am ong the specific activities listed, and ultimate consumers who receive deliveries of fully processed coal almost a lways 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 adopti on of a rule of law limiting § 802(i) to activities involvi ng coal that "has not yet reached a form that is completely proc essed 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 ta ken in its decision in this case -- that, in order to cons titute the work of preparing coal, any activity listed in 30 U .S.C. § 802(i) must be an activity such "as is usually do ne by the operator of the coal mine."

It is thus important to determine what the "as is u sually done" clause means. The majority here takes the pos ition that the clause means simply that the activity in q uestion ("breaking, crushing, sizing," etc.) must be an act ivity that is regularly performed at the site. See Maj. Op. at 6 ("The sentence [in 30 U.S.C. § 802(i)] simply explains th at the work of the coal mine is the work that is usually d one 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 a n unreasonable degree that Congress cannot have inten ded. According to the majority's interpretation, any pla ce where any activity listed in 30 U.S.C. § 802(i) regularly occurs must be a coal mine. Therefore, any place where coa l is regularly stored must be a coal mine, and consequen tly the basement with the coal bin must be subjected to MSH A jurisdiction, provided only that such storage is an activity

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

RNS offers a more reasonable interpretation of the "as is usually done" clause. RNS contends that "as is usua lly 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 stori ng that is done by the typical coal mine operator -- and not b y the
homeowner with a basement bin.

The majority rejects this argument based on a punctilious interpretation of word "the" in the pha se "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,[w ork] usually done by the operator of a coal mine, as RNS states in its brief. If it did, one might have to c ompare the activities at the alleged coal mine with those of a typical, paradigmatic, usual coal mine. The sentenc e as it actually appears in the statute, however, does n ot help RNS. It simply explains that the work of the c oal mine is the work that is usually done in that parti cular 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 chang ing the statutory "the" into an "a," but the majority o verlooks the fact that RNS has plenty of company. Many cases

, including several from this court, have written thi s 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.

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3. The majority states that a basement coal bin is not subject to MSHA jurisdiction because "the MSHA has jurisdiction onl y 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 major ity can square this rule with its interpretation of the "as is usually done" clause is a
mystery.

181984); 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 prepa ration at issue must be of a type usually performed by a c oal mine operator") (citing Secretary of Labor v. Pennsylvan ia Electric
Co. , 11 FMSHRC 1875, 1880 (1989) and Secretary of Labo r 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 t o 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 Produc ts 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 usu ally done by a coal mine operator is a factual question that the Commission has not addressed. I would therefore gra nt RNS's petition for review and remand to allow the Commission to decide this question.

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4. In Oliver M. Elam , one of the cases cited by Judge Mansmann in her
Penelec dissent, the Commission opined that "inherent in t he determination of whether an operation properly is c lassified as `mining' is an inquiry not only into whether the operation p erforms one or more of the listed work activities, but also into the na ture of the operation performing such activities." 4 FMSHRC at 7. 5. While the Secretary's brief does not say so in s o many words, her unacknowledged changing of the "the" to "a" is cons istent with, indeed required by, her recognition that the Act does not extend to activities involving coal that is "completely processed and fu lly ready for its ultimate use." Sec'y Br. at 24.

19III.

As explained in Part I, the Commission appears to h ave believed that it was compelled by Penelec to hold as it did. I do not think that its view was warranted, and I b elieve my analysis to be consistent with the terse discussion of the relevant question in the majority opinion in that c ase. In
Penelec , the court held that "the delivery of coal from a mine to a processing station via a conveyor constit utes 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 q uoted 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 woul d constitute coal preparation in the ordinary sense o f the
term. Penelec is thus wholly consistent with the view of the "as is usually done" clause as limiting the definit ion 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 outs ide 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 perform s any activity listed in § 802(i) under any circumstances is subject to the Mine Act. I would hold, in contrast, that th e definition of the "work of preparing the coal" embr aces 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 l egal standard. Even if I am wrong and the correct legal standard

20is, as the majority holds, that any person who perf orms 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 Com mission did not base its decision on that standard. Therefore, even if the majority's view of the law is correct, the prop er 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 majorit y discussed in the text, I also note that the majority fails to explai n or support its suggestions that the site might come within the sta tute as a "custom coal preparation facilit[y]," Maj. Op. at 8, or a " land[ ] . . . resulting from[ ] the work of extracting such minerals from t heir natural deposits . . . ." Maj. Op. at 8 (quoting 30 U.S.C. § 802(h)( 1)).

21