*1 182 However, agency. that can be said to be made Id. at 451.
the kind of conduct
grounded
policy
regulatory
government’s
re-
in the
the Court decided that the
fail-
Gaubert,
at
gime.”
post warning signs
S.Ct.
a
ure to
was not
decision
to conceive of a case
public
1275.
is difficult
“fraught
policy
with
considerations”
likely
been within the contem-
and, hence,
more
to have
exception.
was outside the
Id.
plation Congress
abrogated
when it
sover-
See also Cassens v. St. Louis River Cruise
eign immunity than the one before us.
Cir.1995) (coast
Lines, Inc.,
(7th
construction of the entire
A somewhat similar case is Bowman v. States, (4th Cir.1987),
United
lowed a road surface to become May Decided warning signs. post failed to The Court delay concluded that the decision to resurfac road,
ing preference of that others repair, policy judgment
need of was a to be *2 Henry
R. (Argued), Moore A. Heather Wyman, Ingersoll Buchanan Professional PA, Pittsburgh, Corp., for Petitioner RNS Services, Inc. Geraghty, Feingold
Colleen A. Jerald S. (Argued), Department States La- United bor, Solicitor, VA, Arlington, for Office of Respondent Secretary Labor, Safety Mine (MSHA). and Health Administration GREENBERG, BEFORE: COWEN ALITO, Judges Circuit OPINION OF THE COURT COWEN, Judge. Circuit Services, (“RNS”) petitions Inc. RNS order of review of an the Federal Mine Safe- (“the ty and Health Review Commission Commission”). contesting While not decision, merits of the Commission’s RNS Safety claims that the Federal Mine (“MSHA”) juris- Health Administration lacks (“the diction its No. 15 Refuse Pile Site”) Township, Pennsylvania. Barr gov- present, order for pro- erning requires that statute coal be constituting cessed at the Site acts “the work of the coal.” 30 U.S.C. 802(i) (1988). RNS contends that (and Commission) jurisdic- lack tion because the Site is one at which the coal” occurs and pure coal. material handled the Site is not RNS’s conclude and we will affirm. statute is incorrect History I. and Procedural Facts This is review of a final order of two Commission. case arises out of citations of Labor issued MSHA) of the coal (acting through the 104(a) mine. I, of the Federal Title Section 814(a)
Safety
and Health
Id.
Act”).
(“the
The citations
Act” or “the Mine
law,
Turning
Pennsylvania
to the case
alleged that RNS failed to record the results
Elec.
v. Federal Mine
and Health
Co.
Site,
(“Penelec
daily
in viola-
”),
examination of the
Review Comm’n
we held
*3
77.1713(c),
delivery
processing
§
of raw coal to a coal
tion of 30
and failed to
C.F.R.
Act,
facility
is an
within the Mine
but
Site,
ground
plan
control
for the
have
delivery
completely processed
not the
safety
violation of the
standard at 30 C.F.R.
to the ultimate consumer.” 969 F.2d
§
77.1000.
did not contest the facts
RNS
(3d Cir.1992)
Director,
(citing
Stroh
cited,
challenged
but instead
the violations as
Comp. Progs.,
Workers’
810 F.2d
Office of
jurisdiction over the Site.
the Commission’s
(3d Cir.1987)).
v. Di-
See also Hanna
lacked
RNS asserted that MSHA
rector,
Comp. Progs.,
Workers’
Office of
not a
because the Site was
“mine” as
(3d Cir.1988).
Stroh,
F.2d
92-93
we
3(h)(1)
is
of the Mine
term defined
Section
truck,
“shovelling coal]
found that
into [a]
802(h)(1).
lodged
§
30 U.S.C.
RNS
haulpmg]
independently
and
it to
owned coal
815(a).
challenge pursuant
§
to 30 U.S.C.
processing plants”
integral
was
to the work
preparing
the coal. Id. at 62. We further
evidentiary
conducting
expedited
After
an
subsequent
noted that
the loaded coal’s
815(d),
hearing
§
pursuant
to 30 U.S.C.
an
transportation
public
roads did not alter
judge agreed
peti-
administrative law
part
its status as an
that is
tioners. The ALJ held that the
was not
Site
preparing
the coal. Id. at 65.
therefore,
and,
“mine”
applied
analysis,
Penelec
a functional
jurisdiction.
petition
On
to the Com-
propriety
jurisdic
wherein the
of Mine Act
discretionaiy
pursuant
for
mission
review
by
tion is determined
the nature of the func
823(d)(2)(B),
§
30 U.S.C.
the Commission re-
analysis
tions that occur at a site. That
versed the decision of the ALJ and
held
Director,
its roots in Wisor v.
Work
Office of
loading
transportation of
coal that
(3d
Comp. Progs.,
ers’
occurred at the Site were sufficient to render Cir.1984),
Stroh,
applied in
810 F.2d at
§
a “mine” under
Site
30 U.S.C.
802. 64,
adopted by
and has been
the Fourth
petitions
RNS
for review.
Servs.,
Energy
Circuit. See United
Inc. v.
Admin.,
Federal Mine
& Health
(4th Cir.1994).
F.3d
II. 30 U.S.C. Section 802
case,
loading,
principal
the instant
Site,
function that occurs at
is
Preparing
A. “Work of
the Coal”
specifically
constituting
listed in the Act as
explains
The Mine Act
that “[a] ‘coal or
preparing
“the work of
the coal.” 30 U.S.C.
802(i).
other mine’ means an area of land ... used
petitioner
asserts
coal_”
in ...
preparing
mistakenly
the work of
per
ruling
made a
se
802(h)(1).
loading
present
whenever
is
at a
Accordingly,
site
a “coal
handled,
which coal is
that site is a “mine.”
which,
alia,
mine” is a site at
inter
“the work
do not
find that
the Commission has
preparing
the coal”
occurs. 30
per
Instead,
ruling.
made such a
se
802(i).
The Act delineates activities
Site,
Commission took note that at the
coal is
constitute “the work of
loaded,
place regularly
fact
at a
used for
coal”:
purpose,
pro-
for further
“work of
the coal’
means
cessing. The Commission concluded that the
breaking, crushing, sizing, cleaning, wash-
plain meaning of the statute and the relevant
ing, drying, mixing, storing,
loading
case law made clear that these activities were
coal,
anthracite,
lignite,
bituminous
sufficient to render the situs of these activi-
work
such coal as
ties a “mine.”1
1. We hold that the
reasonable
of the Commission’s
in the instant case is
by
cognizant
Act is
no
The Commission
means exclusive. This
by
is loaded at
phrase
the coal refuse
Site
is demonstrated
the additional
Fa
delivery
Cambria Co-Generation
to “the
“and such other work of preparing such coal
(Cambria)
Pennsylvania,
cility
Ebensburg,
by
as is
of the coal
generates electricity and
which
steam.
noteworthy
It is
mine.”
this sentence
supplied
material
RNS to Cambria is
say,
“[work]
does not
facility.” Op.
broken and sized
Cambria’s
mine,”
operator of a coal
as RNS states in its
ALJ,
App.
RNS
at 7. The
added).
brief.
Br. at
If
Cambria,
Site to
where it
delivered from the
did,
might
compare
one
have to
the activi-
a form
prepared
reaching
before
further
alleged
ties at the
coal mine with those of a
stor
useable
its ultimate consumer. The
typical, paradigmatic,
“usual” coal mine.
age
step
of the coal
critical
appears
it actually
The sentence as
in the
processing
in the
of minerals
extracted
statute, however,
help
does not
RNS. It sim-
*4
receipt by
in preparation
the earth
for their
ply explains that the work of the coal
mine
end-user,
the Mine Act
intended
and
that
particu-
the work
done
that
Moreover,
to reach
as the
all such activities.
place.
lar
The fact
perhaps
that the Site is
noted,
adjudi
already
we have
an unconventional coal
does not defeat
mine
cated the activities that occur at the Cambria
purposes
its status as
coal mine for the
of
plant
work of
coal.”
preparing
to be “the
section 802.
Chemicals,
Air Products &
Inc. v.
Admin.,
Labor,
and Health
Purity
B.
of
Coal
of
(Dec.1993), aff'd,
2428
37
15 F.M.S.H.R.C.
regard
With
of
the issue
whether
(3d Cir.1994).
logically
F.3d
It
follows
composite
from
mineral
removed
the Site is
of
handling
the coal at the Site
coal,
finding
fact
the ALJ
a factual
made
subsequent
may
order that
readied for
“[t]esting
of material
from the
removed
processing at
also
Cambria
constitutes
pile
that it
indicates
shows the characteristics
preparing
work of
the coal.”
Op.
ALJ,
App.
of coal.”
at
RNS
8. We
of items
of “the
reason to
The list
indicative
have no
believe that
ALJ’s
clearly
findings
the coal” enumerated
were
erroneous.
80, 88,
454, 459,
appropriately
jurisdiction
ery Corp.,
318 U.S.
MSHA
exercises
63 S.Ct.
prepa-
(1943),
over a location in which coal is loaded in
L.Ed. 626
that the Court's concern in that
decision,
processing.
ration for
further
In its
upon
that federal
"intrude
case was
courts not
processing
occurred
Commission noted
Congress
exclusively
the domain which
en
"[p]ursuant
long-term
at the Site
to a
contract.”
agency”
trusted to an administrative
in situations
App.
at 524. The Commission also recited
only
order is valid
as determination
where "an
language,
statutory
relevant
by
“as is
policy
judgment
or
which
alone is
of
App.
of the coal mine."
at 527.
to make and which it has not made.”
authorized
Further,
key ques-
the Commission framed the
case,
In the instant
no factual or other determi
the few
do take
tion as “whether
activities that
Congress sought
"exclusively en
nation that
pile
bring
place
at the No.
are sufficient
being
upon
intruded
trust” to
Commission is
jurisdiction
that site under the
of the Mine Act.”
Rather,
816(a),
"Judi
the courts.
30 U.S.C.
App.
reviewing
propriety
at
528. In
of
Orders,” specifically
of
cial Review Commission
jurisdiction,
only the
the Commission considered
explains that
operator of the
work that "is
jurisdiction
shall have
the court
exclusive
mine,” i.e., “loading.” App.
at 527.
questions
proceeding
determined
the
therein,
and the
short,
range
found that a
limited
power
and shall have the
to make and
coal-processing
regularly
at
activities
occurred
upon
pleadings, testimony,
pro-
and
enter
Site.App.
paraphrase
528. To
at
National
ceedings
Corp.
Corp.,
set forth
a decree
Passenger
in such record
R.R.
Boston and Maine
aside,
setting
affirming, modifying,
112 S.Ct.
or
in whole
(1992), we
Commis-
L.Ed.2d 52
believe that the
part, the order
the Commission and
or in
explicitly
sentence
sion's failure to
state in one
enforcing the
extent that
same to the
“load-
that the MSHA had
because
affirmed or
The find-
order is
modified....
ing”
"usually occurr[ed]”
was the
ings
respect
ques-
the Commission with
require
the Site "does not
a remand under those
fact,
supported by
if
substantial
tions of
evi-
circumstances."
whole,
dence on the record considered as
ex
further note
Justice Frankfurter
conclusive.
shall be
plained
v. Chen
in Securities
Exch. Comm’n
delegation
gives
statute
no indi
from the
to one Assistant Secre-
tary
authority
respect
with coal in
cation that it is concerned
of all
to the
pure
nearly so.
statute
safety
employed
forms that are
health and
of miners
mines,”
plainly
regulates “coal or other
so
physical
one
establishment.
solely with traditional coal.
is not concerned
added).
802(h)(1).
In Marshall v.
expan
We find that this section is so
Co.,
F.2d
Ferry Preparation
Stoudt’s
sively worded as to indicate an intention on
(3d
Cir.1979),
oper
held that the
we
part
Congress
to authorize the Secre
company
sepa
ations of a
tary
to assert
lands
low-grade
gravel
from sand and
rated a
fuel
integral
process
dredged
a riverbed came
that had been
its ultimate consumer.2 As the Commission
immaterial that
within the Act. was
ALJ,
reversing
noted in its decision
“dredged
company processed
“[T]he
refuse”:
prepa
definitions of coal mine and coal
“[t]he
separating
company’s process of
from the
3(h)
3(1)
[codified
ration
sections
at 30
...
dredged
product
a burnable
which
refuse
802(h)(1)
(I)]
§§
are ‘broad[J
fuel,” placed
low-grade
then sold as
‘sweeping,’
‘expansive.’”
App.
prep
of “coal
work within the definition
(quoting
Ferry,
Stoudt’s
C. “Coal or Other
Cambria
was within the
sweep of
statute.
802(h)(1),
In section
“coal or other mine” is
directly:
defined
specifically
The
to
Site seems
be
described
(A) an area of land from which minerals
“impound-
in the statute
such
words
(B)
...,
nonliquid
are extracted in
form
facilities)
(storage
ments”
and “custom coal
private ways
appurtenant
and roads
to
facilities,”
preparation
spe-
since it serves a
(C)
area,
lands, excavations,
and
un-
purpose
larger coal-processing
cialized
in a
shafts,
derground passageways,
slopes,
“lands,”
operation.
sweeping
inclusion of
structures,
tunnels,
workings,
and
“slopes,”
property”
and “other
facili-
further indi-
ties,
machines, tools,
equipment,
or other
Congress’s plain
cates
intention that
property including impoundments,
reten-
jurisdiction
Commission have broad
lo-
dams,
tailings ponds,
tion
and
on the sur-
processed.
cations which coal is
in,
underground,
or
used
or to
used
be
face
Finally,
may indepen-
we note that the Site
in,
from,
resulting
or
the work
extract-
of
dently
fall under
ing such minerals
their natural de-
.resulting
“land[
MSHA as a
..
from[ ]
form,
posits
nonliquid
liquid
or if in
extracting
such minerals from their
form,
underground,
with workers
or used
deposits
nonliquid
natural
form....”
in,
in,
milling
or to be used
of such
802(h)(1).
has not
minerals,
or the work
or
of
however,
argument
appeal,
raised this
on
and
minerals,
other
and includes custom coal
adjudication
day.
we leave its
for another
making
a deter-
facilities.
mination of what constitutes mineral mill-
Purposes
D.
of the Act
ing
purposes
chapter,
of this
the Secre-
tary
give
reading
shall
due consideration to the
When
we are
resulting
statutory
convenience of administration
mindful that
of
“[t]he canons
con-
dissent,
attach,
example,
yet
2. The
with its "basement bin”
tion to
the coal at issue
not
must
(in
commerce").
product
overlooks our
the instant case and
“a finished
in the stream of
cases)
prior
jurisdiction only
purposes
determining
that the
has
For
of
MSHA
which,
alia,
802(i), therefore,
over locations in
inter
coal under-
under 30 U.S.C.
the “work of
goes processing
prepares
the coal for its
such coal as is
operator
ultimate use. See also
F.2d at
of the coal mine” cannot include the
("the delivery
completely processed
handling
of
coal to the
of coal
is in finished form and in
consumer,
possession
ultimate consumer” is not "an
within the
of its ultimate
as it
Stroh,
Act”);
(for jurisdic-
Mine
late the effects
L.Ed.2d 472
most
extraor
safety:
dinary showing
justi
health and
contrary
intentions”
statute.).
altering
plain meaning
fies
of a
that—
Congress declares
(a)
priority and
of all
the first
concern
Here,
legislative history
look at
does
industry
mining
must
the coal or other
appellant’s position;
bolster
the con-
safety and
most
be the
health of its
trary,
position
confirms the
the Secre-
precious resource —the miner....
tary
report
of Labor. The Senate
indicates
(1)
(g)
purpose
chapter
it is the
of this
principal
passing
reason for
the Act
... Secretary
...
Labor
direct
amending
predecessor
Coal
Act was
improved
develop
promulgate
jurisdiction:
expand
safety
mandatory
health
standards
[I]ncluded
the definition
‘mine’ are
protect
safety
health and
Na-
lands, excavations, shafts, slopes, and other
(2)
miners;
other
to re-
tion’s coal or
property, including impoundments, reten-
quire that
coal or
each
of a
dams,
tailings ponds.
These latter
every
in such
mine
miner
specifically
were not
enumerated in the
comply with such
mine
standards....
[predecessor]
definition mine under the
30 U.S.C. 801.
always
Coal Act.
been
Commit-
sufficiently
Congress
about
concerned
express
tee’s
intention that these facilities
safety
the health and
conditions at mines
be included in the
mine and
definition
*6
that,
Products,
in
as was
Air
“[u]nder
stated
Act,
regulation
the
under
and
the Mine
enforcement is not left to the
expressly
the Committee here
enumerates
103(a)
MSHA’s discretion. Section
[codified
these facilities within the
of
definition mine
813(a) requires
]
30 U.S.C.
the
clarify
in
[T]he
order
its intent....
inspect
entirety
all
mines
their
surface
greatly
[at
Committee
concerned that
year.”
least twice a
15 F.M.S.H.R.C. at 2436
affecting
of a
the time
recent accident
(Commissioner Doyle,
n. 2.
concurring).
scope
authority
dam]
unstable
of
case,
questioned.
In the instant
has
Bureau of
Commission
Mines... was
legitimate
safety
about
Finally,
concerns
worker
and
the structures on the surface or
health at
potential
underground,
the Site. True
hazards
which
or are
are used
to be
part
arise from
fact that
of
Site is
or resulting
used in
from the
banked;
safety
there are concerns about fire
of
are included in
the extracted minerals
composition
and
circulation of dust at
of
definition
‘mine’.
Committee
Tripping
and stumbling
may
Site.
addi-
need to
are
notes that there
be a
resolve
Tape
Argu-
jurisdictional conflicts,
tional hazards. Audio
of
is the
Oral
but it
Com-
(Jan.
1997) (on
Clerk,
ment
file with the
intention that what is considered
mittee’s
Circuit).
Appeals
U.S. Court of
regulated
the Third
to be a mine and to be
given
possible]
this Act be
the broadest
by the
purpose
Guided
declaration of
interpretation, and it
intent
this
is the
of
in section 101
the need
to read remedial
Committee
doubts be resolved
favor
broadly,
statutes
do not
we
read this statute
facility
a
the cover-
inclusion
within
of
age
of
facially ambiguous
pro
concerning
the Act.
of
priety
of the Commission’s
(1977),
95-181,
meaning
reprinted
plain
S.Rep.
the Site. The
at 14
the statute
No.
upset
plain
add-
evident on its face. To
this
U.S.C.C.A.N.
ed).
source,
meaning by appealing to an extrinsic
FMSHRC,
therefore,
conclude,
legislative
Electric
history clearly shows that
engaged in the “work of
tion was intended.
performed
if
at the site
coal” at the site RNS
III. Conclusion
of the activities listed
30 U.S.C.
802(i),
regardless of the circumstances.
22, 1996,
April
to us that
is clear
“[ujnder
func
The Commission held that
is in accord
decision of the Commission
analysis
tional
each of the activi
foregoing
Congress. For the
the intent of
802(i) subjects anyone per
listed in [§
ties
reasons,
for Review of the Order
the Petition
forming that
Safety
Mine
and Health Re-
of the Federal
18a-19a)
(App.
(emphases
Mine Act....”
denied.
view Commission will be
added) (quoting Air Products and Chemi
against petitioner.
Costs taxed
cals,
Labor, MSHA,
Inc. v.
2428, 2435,
aff'd,
FMSHRC
WL
ALITO,
Judge, dissenting:
Circuit
(3d Cir.1994) (Table)). The
190 acknowledges tary
II. that MSHA Sec’y Br. not extend this far. See at does improperly from diverging to In addition (“to establish n. 3 coal rationale, Commission’s every activity specifically ... ... enumerat- As on its own terms. incorrect is 802(i) activity ‘such is must be as [§ ed noted, the site at issue was previously usually operator of a done coal engaged in “the was there if RNS “mine” ”). also at 13. mine.’ See id. coal,” 30 U.S.C. preparing work usually is interpreting the “as 802(h)(1), § which is defined to mean: only phrase modifying clause as done” cleaning, breaking, crushing, sizing, work the coal” “such other drying, storing, and load- washing, mixing, to that conflict with our would lead results coal, lignite, or anthra- ing of bituminous It is this circuit prior cases. well settled cite, other and such work delivery complete and elsewhere usually opera- such coal is ly processed coal the ultimate consumer” mine. of the coal tor not fall within the Act. does 802(i). § Director, OWCP, (citing F.2d at 1504 Stroh definition, impor- this interpreting it is (3d Cir.1987)). 61, 64 Accord 810 F.2d Unit whether “as is tant to decide Services, Energy Inc. v. Fed. Mine ed only phrase modifies done” clause (4th Adm., 971, 975 Health Cir. & (“such immediately work of follows 1994). proposition But this cannot stand if coal”) mod- or whether it also preparing such performance any the mere listed activities specific all of the numerous ifies 802(i) bring enough is the site within etc.) (“breaking, crushing, sizing,” that come noted, jurisdiction. “storing” As is It seems to me that the most natural before. listed, among specific activities and ulti language reading provision of this mate consumers who receive deliveries of modifies that the “as is done” clause always fully processed coal almost store prepar- phrase “such other work of burning some of that coal before it. least coal,” ing this would but noteworthy Secretary appears extend MSHA to unreasonable danger recognize the of such a conflict. Her example, interpreta- lengths. For under this adoption expressly requests the of a brief “storing” always constitute would 802(i) limiting rule of law to activities in coal,” there- “work of volving yet coal that reached a “has not form (in- “storing” site where occurred fore fully completely processed ready that is with a cluding, presumably, basement Sec’y Br. for its ultimate use.” bin) be a to MSHA would “mine” reasons, contrary For these I would hold— jurisdiction. required The MSHA would be position that the Commission seems to (and year inspect per the basement twice to have taken in in this me its decision case— warrant). could do so without See that, pre- order constitute the 813(a), 814(d); Dewey, §§ Donovan v. U.S.C. coal, any activity in 30 paring 101 S.Ct. 69 L.Ed.2d U.S. 802(i) must be an such “as is usual- (1981). view, would, my a result Such ly of the coal mine.” “demonstrably congressional at odds” with Contractors, Inc., important thus intent. v. Oceanic It is to determine what the Griffin 564, 571, done” means. U.S. “as is clause The ma- S.Ct. (1982). Indeed, jority position the Secre- here takes that the clause L.Ed.2d 973 even though Chenery progeny. explained may appear regards and its As we even wasteful as follow hand, important proper for the the case Slaughter: will, proceed- legislative since execution of agency has on an Where the rested its decision ing right path may require or at least *9 reason, gener- should unsustainable the court qualifications permit agency to make though ally it dis- reverse and remand even exceptions wrong that one would not. one, by possibility, strong Chenery cerns a even a (quoting Friendly, at 128 Revis- 794 F.2d might reasoning course of another on Reversal and Remand Ad- ited: Reflections of Orders, 197, |T|he 222-23). process, ministrative 1969 Duke L.J. come to the same result....
191
activity
simply
question
alleged
activities at the
coal
means
mine with
etc.)
sizing,”
(“breaking, crushing,
must be an
typical, paradigmatic,
those of a
usual coal
activity
regularly performed
is
at the
mine.
it actually appears
The sentence as
(“The
Maj. Op.
sentence
statute, however,
[in
site. See
at 185
in the
does
help
not
802(i)
explains
§
simply
U.S.C.
that the
]
30
simply explains
RNS. It
that the work of
of the
is the work that
work
coal mine
is
the coal
usually
mine is the work that is
usually
place.”).
particular
done
particular place.
done
The fact that
perhaps
the Site
is
unconventional coal
strongly disagree
interpreta
this
I
with
mine does not
its
defeat
status as a coal
tion,
by
party
which was not advocated
either
mine for
of
purposes
section
ease,
802.
supported by any
in this
and is not
judicial
authority.
cited
administrative
Maj. Op.
(emphasis
at 185.
and emendation in
interpretation
jur
again
This
extends MSHA
(citation omitted).
original)
degree
to an
isdiction
unreasonable
that Con
According
cannot
gress
have intended.
majority
quick
The
is
take RNS to task
any
interpretation,
place where
changing
statutory
“a,”
“the” into an
802(i)
activity
regu
but
majority
overlooks
fact that RNS
larly
Therefore,
occurs must
mine.
be a coal
plenty
Many cases,
has
company.
of
includ
place
regularly
where coal
stored
is
must
court,
ing several from this
have written this
mine,
consequently
a coal
the base
clause with an “a” instead of a “the.” See
subjected
with the coal
must be
ment
bin
to Penelec,
1503;
969 F.2d at
Hanna v. Di
jurisdiction,
only
provided
that such
rector, OWCP,
(3d Cir.1988);
860 F.2d
storage
usually
is an
is
“that
done
OWCP,
Director,
Wisor v.
particular
Maj. Op.
place.”
at 185.3 (3d Cir.1984);
Director, OWCP,
Fox v.
interpreta-
RNS offers a more reasonable
(11th Cir.1989);
F.2d
Air Prod
usually
done”
“as is
clause. RNS ucts,
2431; Penelec,
15 FMSHRC at
usually
by
contends that “as
done
is
(Mansmann,
(“the
J.,
F.2d at 1509
dissenting)
operator
the coal mine” means as is done preparation
type
at issue must be of a
usual
Thus,
by
typical
operator.
mine
coal
(cit
ly performed by
operator”)
mine
coal
interpretation, “storing”
this
must be
ing Secretary
Pennsylvania
Labor
Elec
by
type
storing
typical
done
that is
Co.,
(1989)
tric
FMSHRC
operator
by
coal mine
not
the home-
—and
Elam, Jr.,
Secretary
Oliver M.
Labor v.
with a
owner
basement bin.
Co.,
(1982)).4
Moreover,
not must be as is mine, ”); of a coal a coal tor as RNS states its mine.’ id. at did, might compare If it have to 13.5 In brief. one the Commission Air majority 'mining' inquiry 3. states that a basement coal bin is classified as is an not into operation performs not to MSHA because “the whether the one or more of activities, jurisdiction only the listed but also MSHA which, locations in work into the nature alia, undergoes processing operation performing inter activities.” Maj. prepares Op. the coal use.” FMSHRC at for its ultimate majority square 186 n. 2. But how the can this of the "as rule say Secretary's 5.While brief does so in mystery. done" clause is a words, many unacknowledged changing so her with, of the "the” to "a" consistent indeed Elam, required by, recognition In Oliver M. of the cases cited her that the Act does not one dissent, Judge involving Penelec extend Mansmann in her to activities that is "com- pletely processed fully ready opined that "inherent in the deter- for its ultimate operation Sec’y properly use.” mination of whether an Br. at 24. *10 ordinary in the the provision preparation “as sense of this as is usual- Products wrote wholly consistent with operator coal mine.” 15 term. Penelec thus ly by [a] done (emendation usually origi- the “as done” clause as view of at 2430-31 FMSHRC me, nal). authorities, preparation coal to limiting it to the definition of seems All of these by operator All activities done interpretation. of them those support RNS’s that, although generally mine as that term is acknowledge coal appear tacitly to “the,” its the Penelec court Congress intended understood. used the word clearly expressly prior reaffirmed the statement have more ex- meaning would been delivery completely pro- “a.” While this Stroh that pressed had it used the word falls may the most literal coal to ultimate consumer” not be cessed it at 1504. As I statutory language, seems to outside the statute. Id. have reading shown, reading of Penelec we can do with the the Commission’s represent me to best proposition. unfortunately provision that con- is inconsistent that worded fronts us. Whether RNS’s activities IV. transporting it to Cambria are the
coal and Accordingly, I hold that the Com- type a coal mine would of work done made error of law operator question is a factual the Com- mission any any performs activity person I there- who listed mission has not addressed. would 802(i) any sub- grant petition for under circumstances is fore RNS’s review hold, ject in con- to to the Mine Act. I would remand allow the decide trast, the definition of “work question. this perfor- the coal” embraces the activities, or mance of whether not listed III. 802(i), only type if they are the of work I, explained As Part the Commission usually operator, coal mine as it com- appears to believed have commonly I term is understood. would pelled by as it did. I do not Penelec hold grant petition RNS’s for review and remand warranted, and I think that its view was permit this reevaluate analysis to my believe be consistent with the legal case under that if I am standard. Even question in terse of the relevant discussion is, wrong legal and the as correct standard majority opinion in that case. In holds, majority any person per- who delivery of held that “the coal from court any any listed under circum- forms conveyor processing a mine station via long stances is so ‘usually coal constitutes basis, performs regular he on a ” of a coal mine.’ 969 F.2d at perfectly I it is clear that believe the Com- Thus, contrary to the Commission’s not decision mission did base its apparent perception, the Penelec court did Therefore, if standard. even language utilize in its the “as done” correct, proper disposi- view law is Indeed, holding. quoted the clause as Chenery.6 tion is a remand under Moreover, including “a” instead of “the”. presented the Penelec court with the
question anyone reaches whether statute performs
who Rather, the head drives at
circumstances. to a process-
issue in Penelec moved raw coal
ing plant precisely where underwent
type of treatment that would constitute Op. resulting my disagreements or a ... "land[ ] £rom[ ] In addition to with the ma- text, jority also note extracting discussed in I such minerals from their nat- explain support sugges- majority fails to Op. (quoting deposits_” Maj. ural might tions that the site come within the statute 802(h)(1)). preparation facilit[y],” Maj. as a "custom