<DOC>
[DOCID: f:p95-382.wais]

 
RNS SERVICES, INC.
July 28, 1995
Docket No. PENN 95-382-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                            July 28, 1995


RNS SERVICES, INC.,               :  CONTEST PROCEEDINGS
   Contestant                     :
         v.                       :  Docket No. PENN 95-382-R
                                  :  Citation No. 3713378; 6/16/95
SECRETARY OF LABOR,               :
  MINE SAFETY AND HEALTH          :  Docket No. PENN 95-383-R
  ADMINISTRATION (MSHA),          :  Citation No. 3713379; 6/16/95
   Respondent                     :
                                  :  RNS Services Mine
                                  :  Mine ID No. 36-07266


                               DECISION

Appearances:  R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh,
              Pennsylvania for the Contestant;
              James Brooks Crawford, Esq., U.S. Department of Labor,
              Office of the Solicitor, Arlington, Virginia, for the
              Respondent.

Before:  Judge Weisberger


History of these cases

    These cases, which were consolidated for hearing, are before me
based upon Notices of Contest filed by RNS Services, Incorporated
(RNS) challenging the issuance of two citations by the Secretary of
Labor (Secretary).  On June 19, 1995, RNS filed a Motion to Expedite.
A telephone conference call was convened to discuss this motion.
After hearing arguments from both parties, the cases were scheduled
for hearing on July 6, 1995.  The parties each filed a pre-hearing
memorandum of law on June 29, 1995.  At the hearing, James E.
Biesinger, Gary L. Boring, and Leo E. Makovsky testified for the
Secretary.  Neil Hedrick, and Robert J. Pavelko testified for RNS.
The parties filed post-hearing briefs on July 24, 1995.

Findings of Fact

     The following findings of fact are based upon the parties'
stipulations and the evidence of record:

     1.  The No. 15 dumps site at issue, a 15 acre parcel, is operated by
RNS.

     2.  A pile of material on the site, approximately 1,200 feet long,
500 feet wide and 90 feet wide, consists of refuse from a preparation
plant that had been operated by Barnes and Tucker Coal Company, or its
predecessor Barnes Coal Company.  The preparation plant processed coal
from the Barnes and Tucker No. 15 underground mine.  Washing,
screening, and sizing of coal were performed at the preparation plant.

     3.  The No. 15 mine ceased operations sometime prior to 1969.  The No.
15 preparation plant ceased production sometime prior to 1968, and was
demolished.

     4.  There are no buildings or other facilities on the site at this
time.  The No. 154 mine had operated in the "B" seam which contained
metallurgical coal with a normal BTU value of between 13,000 and
14,000 BTUs.

     5.  In January 1995, RNS acquired the No. 15 site in from Lancashire
Coal company, a subsidiary of Inland Steel, which had acquired the
site from Barnes and Tucker.

     6.  RNS supplies coal refuse to the Cambria Co-Generation Facility
(Cambria) in Ebensburg, Pennsylvania, which generates electricity and
steam.  The material supplied by RNS to Cambria is broken and sized at
Cambria's facility.  RNS has a flat fee contract with Cambria to
deliver coal refuse, and remove ash[1] from the Co-Generation
Facility.  RNS does not receive any payment from Cambria based on the
quantity of coal refuse it delivers to Cambria.

     7. RNS has the following equipment at the site:  A hydraulic excavator
to remove material form the pile and load trucks, a water truck, a
bulldozer, and a backhoe.

     8.  With the exception of a 4 inch grizzly to remove timbers from the
pile, there is no screening, crushing, sizing or washing of the
material at the subject site.

     9.  The material removed from the pile is loose, and is not being
taken from its natural deposit.

     10.  Testing of material removed from the pile indicates that it
shows the characteristics of coal.

     11.  The work being conducted at the No. 15 site by RNS is under a
no-cost government financed reclamation contract with the Commonwealth
of Pennsylvania.  This contract calls from the removal of refuse from
the site, and the provision of cover and revegitation.

     12.  The hazards at the site are associated with the collapse of
the highwall.  Also present are hazards associated with material falling
off the highwall as well as tripping and stumbling hazards.  In
addition, the material in the pile has the potential to burn or
explode.

Violations

     On June 16, 1995, MSHA inspector Gary L. Boring inspected the
subject site.  He issued a citation alleging the failure to record the
results of daily inspections at the site.  He also issued a citation
alleging that RNS had not established a ground control plan.  RNS does
not challenge the factual assertions set forth in these citations, and
agrees that the relevant mandatory standards were violated.  However,
RNS challenges MSHA jurisdiction over the subject site.

Discussion

     Section 4 of the Federal Mine Safety and Health Act of 1977 (the Act)
provides as follows:

          Each coal or other mine, the products of which enter commerce,
     or the operations or products of which enter commerce, and each
     operator of such mine, and every miner in such mine shall be
     subject to the provisions of this Act.

     "Coal or other mine" is defined in Section 3(h)(1) of the Act as
follows:

          [C]oal or other mine means (A) an area of land from which
     minerals are extracted in nonliquid form or, if in liquid form,
     are extracted with workers underground, (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 Act, the Secretary administration resulting from
     the delegation to one Assistant Secretary of all authority with
     respect to the health and safety of miners employed at one
     physical establishment.

     The Secretary argues that he has jurisdiction under the Act under
two theories.  He first maintains that RNS was, in its work performed at
the No. 15 refuse disposal site, "engaged in the work of preparing
coal" under Section 3(h)(2)(i) of the Act.  Under the latter section,
"work of preparing the coal " is defined as "the breaking, crushing,
sizing, cleaning, washing, drying, mixing, storing, and loading of
bituminous coal ... and such other work of preparing such coal as is
usually done by the operator of the coal mine."

     In the instant cases, with the exception of the removal of coal,
none of the activities set forth in Section 3(h)(2)(i) of the Act are
performed at the site.  The sole activities performed at the site,
those of the removal of material by a hydraulic excavator, the loading
of the material on trucks, and the transporting of material to the
Cambria facility are not activities set for in section 3(h)(2)(i),
supra.

     In this connection, the operation at issue is to be distinguished
from the cases relied on by the Secretary, in which jurisdiction was found
to exist over operations that performed breaking, crushing, and sizing
of coal.[2]  I thus conclude that the operation herein was not the
work of preparing coal, and hence does not fall within the definition
of a mine as set forth in Section (3)(h)(1), supra.

     The Secretary also argues that the No. 15 refuse site meets the
definition of "coal or other mine" under Section 3(h)(1) of the Act in
that "the area at issue constitutes lands ... structures, facilities
... or other property ... used in or resulting from the work of
extracting such minerals form their natural deposits in non-liquid
form ... ."

     In the instant cases, it is clear that the material being removed
was from a pile that was not in its natural deposit.  Rather, the refuse
material had been deposited on the ground after the completion of the
coal preparation process.  In this connection, Section 3(h)(i) of the
Act refers to three different mining activities:  extracting
materials, milling minerals, and preparing coal or other materials.
(Lancashire Coal Company v. Secretary of Labor, 3d Cir. 968 F.2d 388
(1992)).

     The scope of the definition of "coal or other mine" in the Act with
respect to extraction of minerals from their natural deposits includes
"lands, excavations ...structures ... used in or to be used in, or
resulting from the work of extracting minerals from their natural
deposits ... ."  The scope of the Act's definition with respect to
coal preparation is limited to "lands ... or other property used in or
to be used in the work of preparing coal or other minerals."  The
definitional language with respect to coal preparation does not
include the phrase "resulting from," which is included with respect to
extraction of material from a natural deposit.  The language with
respect to coal preparation is thus limited to lands, etc., "used in
or to be used in" such work while the scope of the Act with respect to
mining itself is broader, also including lands, "resulting from" the
work of extracting such minerals.

     In Lancashire, supra, the Court held that MSHA did not have
jurisdiction over the demolition and reclamation work done at a coal
silo,[3] part of an abandoned preparation plant.  In Lancashire,
supra, the Court took cognizance of the differences in the wording
with respect to mining, and preparing, as well as the legislative
history.  The court held that buildings resulting from the preparation
of coal were not within the acts jurisdiction.  In contrast, based on
the wording of the Act, buildings resulting from the extraction of
coal are within the Act's jurisdiction.

     Thus, focusing on the different treatments in the Act between the
activities of extraction and preparation of coal, I find that the pile
at issue did not result from the initial extraction of coal, since the
coal that was extracted had been subjected to subsequent preparation.
I find that the pile resulted from the preparation plant, and from the
preparation of coal.

     For all the above reasons, I find that the subject operation was not
a mine as defined in the Act.  I thus find that it was not subject to
the Act's jurisdiction.  Hence, the notices of  contest are sustained,
and the citations at issue, Nos. 3713378 and 3713379, are to be
dismissed.

                              ORDER

     IT IS ORDERED that Citation Nos. 3713378 and 3713379 be DISMISSED.


                                          Avram Weisberger
                                          Administrative Law Judge


FOOTNOTES

     [1]  The ash is a product of the burning of coal refuse at Cambria.

     [2]  In Air Products & Chemicals, Inc., 15 FMSHRC 22428 (1993) the
Commission held that the breaking, crushing, sizing and storing of
coal were activities usually performed by an operator, and that
accordingly  the coal handling facility at issue was subject to the
Act's jurisdiction.  In Westward Energy Properties, 11 FMSHRC 2408
(1989), the Commission concluded that an operation in which coal
mining waste was screened and crushed was subject to the Act's
jurisdiction.  In the same fashion, in Alexander Brothers
Incorporated, 4 FMSHRC (1982), it was held by the Commission that an
operation that included breaking, crushing, sizing, cleaning, washing,
drying, mixing, storing and  loading was engaged in the preparation of
coal and hence was subject to the Act.  In Mineral Coal Sales
Incorporated, 7 FMSHRC 615 (1985), the Commission held that a company
that stored, mixed, crushed and sized coal was subject to the
jurisdiction of the Act.  In RNS Services Inc., 16 FMSHRC 1322 (Judge
Melick)(June 1994) Judge Melick found jurisdiction to  exist where the
operation included activities of breaking, sizing, and cleaning of
coal.

     [3]  This coal silo is located on a parcel of land that, prior to
January 1995, was part of the same parcel as the site at issue in the
case at bar.  The silo is approximately 50 feet from the pile at
issue.


Distribution:

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 57th Floor,
600 Grant Street, Pittsburgh, PA  15219  (Certified Mail)

James Brook Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA  22203
(Certified Mail)

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