Marion Docks, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Marion Docks challenged MSHA's authority over its coal loading facility and argued that the facility was not a mine under the Mine Act. Judge George A. Koutras found that the facility weighed, stored, mixed, crushed, sized, and loaded coal, including custom blending to meet customer specifications. Those activities constituted coal preparation and brought the facility within MSHA's jurisdiction. Because Marion Docks agreed to pay the proposed penalties if it lost the jurisdictional issue, the judge affirmed all seven contested citations and orders. The notices of contest and related motions were denied and dismissed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1102(d), 77.1104, 77.205(b), and 77.202; 30 U.S.C. § 802(h)(1)
• Outcome: MSHA jurisdiction was upheld, and all seven contested citations and orders were affirmed.
• Key point: A coal loading facility falls within Mine Act jurisdiction when its operations include coal preparation to meet customer specifications, not merely loading for transport.

Full text (FMSHRC public release)

~1589
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

MARION DOCKS, INC., CONTEST PROCEEDINGS
CONTESTANT
v. Docket No. WEVA 88-169-R
Order No. 2896051; 3/1/88
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH Docket No. WEVA 88-170-R
ADMINISTRATION (MSHA), Citation No. 2896052; 3/1/88
RESPONDENT
Docket No. WEVA 88-171-R
Citation No. 2896053; 3/1/88

                                        Docket No. WEVA 88-172-R
                                        Order No. 2896054; 3/1/88

                                        Docket No. WEVA 88-173-R
                                        Order No. 2896055; 3/1/88

                                        Docket No. WEVA 88-174-R
                                        Order No. 2896056; 3/1/88

                                        Docket No. WEVA 88-175-R
                                        Order no. 2896057; 3/1/88

                                        No. 1 Mine
                                        Mine ID 46-06904

                            DECISIONS

Appearances: W. Henry Lawrence IV, Esq., Steptoe & Johnson,
Clarksburg, West Virginia, for the Contestant;
Joseph T. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Respondent.

Before: Judge Koutras

Statement of the Proceedings

 These proceedings concern Notices of Contest filed by the

contestant pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, challenging the legality of the

~1590
captioned citations and orders issued pursuant to the Act. The
contestant takes the position that its Marion Docks loading
facility is not a mine within the statutory definition of that
term as found in 30 U.S.C. 802(h)(1). The record reflects that
the contestant did not contest or seek review of the civil
penalty assessments made by MSHA with respect to the contested
citations and orders. Contestant's counsel confirmed that the
contests which are the subject of these proceedings are based on
the contestant's jurisdictional arguments, and assuming an
adverse decision with respect to this issue, counsel confirmed
that the contestant will pay the proposed civil penalty
assessments and will not contest the fact of each violation or
the amounts of the civil penalty assessments (Tr. 5-7).

 The respondent filed timely answers to the contests, and it

takes the position that the loading facility in question is a
mine within the statutory definition at 30 U.S.C. 802(h)(1),
and that the contestant is subject to MSHA's enforcement
jurisdiction. A hearing was conducted in Fairmont, West Virginia,
and the contestant has filed posthearing arguments in support of
its jurisdictional position. The respondent filed no posthearing
brief, and relies on its pretrial jurisdictional arguments filed
in its Memorandum in response to the contestant's motion for
summary decision, which I previously denied. I have considered
all of the arguments made by the parties in these proceedings,
including those made on the record during the course of the
hearing.

         Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub.L.

95-164, 30 U.S.C. 801 et seq.

 2. Commission Rules, 29 C.F.R.      2700.1 et seq.

                             Issue

 The issue presented in these proceedings is whether or not

the contestant's Marion Docks loading facility is a mine subject
to MSHA's inspection and enforcement jurisdiction.

                           Discussion

 The contested citations and orders, which include

"significant and substantial" (S & S) findings, were all issued
by MSHA Inspector Homer W. Delovich during the course of an
inspection which he conducted on March 1, 1988, and they are as
follows:

~1591
Section 104(d)(2) Order No. 2896051 cites an alleged violation of
mandatory safety standard 30 C.F.R. 77.1102(d), and the
condition or practice is described as follows:

      At the diesel fuel tank storage, coal and coal dust was
      accumulated and completely covered up the backside of
      the 12 foot tank to the top and halfway up both ends.
      Condition of the tank was due to the coal storage pile
      loaded too high and against the tank. Presents a fire
      hazard and hazard to the workmen when walking and
      putting fuel in the tank. Tom Visnans, foreman of this
      shift, and tank stored next to the office and weight
      house where (sic) readily visible and condition has
      existed for a period of time. No one working to clean
      around the tank when observed. Tank holds 400 to 500
      gallons of fuel.

 Section 104(a) Citation No. 2896052 cites an alleged

violation of mandatory safety standard 30 C.F.R. 77.1104, and
the condition or practice is described as follows: "Combustible
materials of grease, oil and coal are accumulated on the frame,
motor housing inside, radiator and sides of the Beckwith 966
Front End Loader. Tom Visnans foreman."

 Section 104(a) Citation No. 2896053 cites an alleged

violation of mandatory safety standard 30 C.F.R. 77.1104, and
the condition or practice is described as follows: "Combustible
materials of grease, oil and coal dust were accumulated in the
frame, motor housing inside, radiator and sides of the 980 Front
End Loader. Tom Visnans, foreman."

 Section 104(d)(2) Order No. 2896054, cites an alleged

violation of mandatory safety standard 30 C.F.R. 77.205(b), and
the condition or practice is described as follows:

      The walking platform at the outer side and front of the
      slate picker's platform and at the bottom of the ladder
      landing to the crusher platform and area of between the
      two ladders were obstructed by coal spillage
      accumulations over the toe boards of approximately 12
      to 18 inches in height across the walkway platforms.
      For a distance of 15 feet at the slate picker's
      platform and 8 feet at the crusher platform. Conditions
      present a trip and stumble hazard. Rick Love-slate
      picker laborer and Tom Visnans foreman.

~1592
Section 104(d)(2) Order No. 2896055 cites an alleged violation of
mandatory safety standard 30 C.F.R. 77.1104, and the condition
or practice is described as follows:

      Combustible materials of oil, grease and coal dust were
      accumulated and caked on the front, back and sides of
      the 4 foot x 6 1/2 foot crusher housing and coal dust
      was covering the floor of the platform housing the
      crusher. Tom Visnans, foreman. Conditions present an
      ignition and fire hazard.

 Section 104(d)(2) Order No. 2896056 cites an alleged

violation of mandatory safety standard 30 C.F.R. 77.205(b), and
the condition or practice is described as follows:

      The elevated stacker belt ramp walkway was obstructed
      at the entrance by piles of coal, accumulation of coal
      approximately 2 feet high on the ramp at the entrance
      for approximately 9 feet and coal lumps inby up the
      ramp to the top. Condition presents a stumbling and
      tripping hazard. Tom Visnans, foreman.

 Section 104(d)(2) Order No. 2896057 cites an alleged

violation of mandatory safety standard 30 C.F.R. 77.202, and
the condition or practice is described as follows:

      The roller drum and bottom belt for approximately 5
      feet were turning and running in accumulations of coal
      dust, the roller drum and pillar bearings were
      completely engulfed in coal dust. Condition presents an
      ignition and fire hazard. Tom Visnans, foreman.
      Conditions of coal and coal dust were at the roller
      drum and bottom belt of the Stacker Belt.

Respondent's Testimony and Evidence

 MSHA Inspector Homer W. Delovich confirmed that he conducted

an inspection of the contestant's dock facility on March 1, 1988,
and that this was his first inspection there. However, from a
review of MSHA's "mine profile," which includes information
concerning past violations, respirable dust and noise sampling,
training, and the mine legal identification information, he
learned that the facility had previously been inspected by MSHA
twice a year since 1985 (Tr. 17-22, exhibits R-1 through R-3).
Mr. Delovich confirmed that the Mine ID

~1593
information reflects that the facility is a coal or barge loading
facility, and he described the operation as follows at (Tr.
22-23):

      Q. Well, coal/barge loading facility. What do they do
      there, do you know?

      A. Yes, sir. They load coal, they weigh it, they blend
      it, they crush it, and they convey it into barges,
      across the road to the river. They have two draw-off
      tunnels that we inspect.

      Q. I'm sorry. That was two draw-off what, sir?

      A. Draw-off tunnels underneath the coal bins when they
      dump it which we inspect for methane and stuff. We have
      three conveyor belts. We have a crusher. We have a
      weight house. We have two endloaders there and, plus,
      we have the fuel tanks and scale house.

      Q. When you conducted your inspection, did you have a
      chance to observe the operation?

      A. Yes, sir.

      Q. How is the operation performed from the time the
      coal comes in, do you know?

      A. The coal is brought in by a truck and weighed at the
      scale house. That is where the foreman has his office.
      Then it is taken either -- if they are dumping into the
      barges, it is taken to the barges by dumping into the
      coal bin. That is if they have barges available to
      load. If they don't, then they stock the coal in a pile
      and blend it that way.

 Mr. Delovich stated that he has observed coal being cleaned

and crushed, and through conversations with superintendent Frank
Miller, Mr. Sorbello, Mr. Bealko, and Mr. John Markovich, he
learned that coal was also blended at the facility. Mr. Delovich
explained that Mr. Sorbello, Mr. Bealko, and presumably Mr.
Miller, buy coal, and also produce coal from mines which they own
and operate. He identified them as the Deconder Mine, M & J Coal,
Wasco Fuels, and a new mine which he identified as the Manley
Mine, and confirmed that they are all located in West Virginia
(Tr. 25). Mr. Delovich

~1594
stated that he met Mr. Miller, Mr. Sorbello, and Mr. Bealko
through his inspections at the M & J Coal Company. He also stated
that the coal produced at these mines is brought out of the mines
by conveyor belts, dumped and loaded onto trucks, and then
transported to the contestant's loading facility.

 Mr. Delovich stated that he has inspected three other coal

mines which sell or contract coal from the Sewickley and
Pittsburgh seams to Mr. Sorbello, Mr. Bealko, and Mr. Miller, and
he identified them as "the LaRosa Fuels on the Meredith job, the
Patterson Brothers, and Thompson, the river mine" (Tr. 27). Mr.
Delovich explained that the Sewickley coal is high in ash and
"dirtier coal," and that the Pittsburgh coal "is probably the
best Pittsburgh coal in the United States as far as sulphur
content is and the cleanliness of it" (Tr. 27). In order to fill
its orders, and to keep the coal below a certain ash content, Mr.
Delovich believed that the contestant blended the Pittsburgh low
sulphur coal with the Sewickley coal, and he confirmed that he
learned this through conversations with the company and other
inspectors (Tr. 28).

 Mr. Delovich stated that while he was present at the M & J

Coal Company mine for 10 or 12 days in connection with the
sealing of a mine fire area, he spoke with Mr. Sorbello, Mr.
Miller, and Mr. Bealko, and they were concerned that they needed
to have the mine in operation because the coal was low in sulphur
and ash and they had to blend it with their other coal in order
to sell it at the Marion Docks. Mr. Delovich confirmed that Mr.
Miller is the superintendent at the Marion Docks facility (Tr.
29). In response to a question as to whether he had ever observed
blending being done at the Marion Docks, Mr. Delovich responded
as follows (Tr. 29):

      A. I was talking to Frank Miller and them when we was
      writing their notices and the trucks was coming in, and
      if the truck comes in from one company and it is the
      type of coal they need to put in, you know, they load
      so much trucks from one outfit and then they loaded so
      much and then they dump it in there and they try to
      blend it. When they stock it, they probably try to
      blend it that way.

      Q. But you saw the trucks coming in.

      A. Yes, sir, I saw the trucks coming in. I didn't know
      where they were coming from but that is how it was
      done.

~1595
Mr. Delovich confirmed that he has observed coal crushing taking
place at the Marion Docks facility. He stated that crushing was
required "because of the large size of coal coming through," the
need to get rid of the large lumps of pyrite coal which will not
sell or ruin the crusher. He described what he observed as
follows (Tr. 30):

      THE WITNESS: The coal is dumped in a bin and goes down
      in the draw-off tunnel and comes up the chute where
      they have a man cleaning and picking slate. Then,
      underneath it, it drops into a crusher and then comes
      out and falls onto the belt and it takes it up to
      another pile which goes to another draw-off tunnel and
      to the river barge it is conveyed to.

 Mr. Delovich believed that the coal shipped from the Marion

Docks facility goes to the Willow Island Electric Power Company
located at Parkersburg, West Virginia, and that it is transported
along the Monongahela, Allegheny, and Ohio Rivers. The power
company burns the coal to furnish electrical power, and he
learned that Willow Island was one of the contestant's customers
through conversations with Mr. Miller and Mr. Bealko. In
addition, one of the employees, John Martin, advised him that
Willow Island had returned some barges of coal "because of dirty
coal and that at that time that is why they had to watch how they
blended their coal" (Tr. 31). He also learned this from another
company who sells coal to the electrical company (Tr. 32).

 Mr. Delovich stated that he observed two endloaders, two

draw-off tunnels, and three conveyor belts at the Marion Docks
facility, and he described the function of the draw-off tunnels
as follows (Tr. 32-33):

      THE WITNESS: Well, we dump coal into a bin on the first
      draw-off tunnel and it goes down underneath the ground.
      Then the belt is down there and it dumps onto the belt
      and it comes up where the slate picker is and then it
      drops into the crusher and then the crusher drops it
      out onto a little conveyor belt that takes it up and
      drops it into a pile and then they push it into a
      draw-off tunnel -- again, another one in which goes over
      across the road and to the river to the barges.

 In clarifying his previous testimony that some of the coal

transported to the facility is trucked and dumped directly

~1596
into a barge if it were readily available for loading, or
stockpiled if there was no barge available, (Tr. 24), Mr.
Delovich again confirmed that this was the case, but explained
that "they don't dump it in the barge. They dump it into the coal
chutes . . ." (Tr. 34). When again asked whether the coal is
taken directly to the barge, he replied as follows at (Tr.
34-35):

      THE WITNESS: With the truck. It is taken to there and
      then -- well, I don't know how they determine which coal
      they are blending. Now, of course, if it comes from one
      mine, I know we have two trucks coming out of M & J
      Coal and I have talked to those men. When I talked to
      the truck drivers there up at the mine, the M & J, they
      told me they needed the coal real bad. And, Mr.
      Markovich told me he has got to mine coal so that they
      can blend it or they can't sell their coal.

 Mr. Delovich identified a copy of the MSHA Mine

Identification Number (ID), assigned to the M & J Coal Company,
and confirmed that it is part of the mine profile maintained in
MSHA's records for that mine (exhibit R-4, Tr. 37-38). He
confirmed that Charles Sorbello is listed as the President of M &
J Coal Company, and that he is also shown as the
Secretary-Treasurer of Marion Docks in MSHA's legal
identification file (Tr. 38, exhibit R-1).

 Mr. Delovich confirmed that he has previously inspected the

M & J Mine, and he estimated that it is 5 miles from the Marion
Docks facility. He confirmed that it is still operational, and
was operational at the time he inspected Marion Docks in March,
1988 (Tr. 40). He also confirmed that Marion Docks has never
previously questioned MSHA's jurisdiction to inspect its facility
(Tr. 41). In addition to the M & J Mine, Mr. Delovich believed
that Mr. Sorbello has an ownership interest in the No. 2 Williams
Mine, which he understands leases the mine to the "DeConder
brothers," who sell the coal to Mr. Sorbello. Mr. Delovich also
believed that Mr. Sorbello has an ownership interest in the Wasco
Mine, which reclaims gob coal through a tipple and ships it to
Marion Docks (Tr. 42-43). Mr. Delovich did not believe that Wasco
Coal was controlled by Marion Docks, but that Mr. Sorbello is an
officer in both companies (Tr. 45). Mr. Delovich later stated
that he has no knowledge that Wasco, which is also known as Wash
Fossil Fuels, actually ships coal to Marion Docks, but that the
Williams and M & J mines do (Tr. 47).

~1597
Mr. Delovich stated that in his prior conversations with Marion
Docks superintendent Miller concerning MSHA's enforcement
jurisdiction, questions were raised about two other dock loading
facilities across the river, and he identified them as the
Seccuro and Agerwald facilities. Mr. Delovich stated that Seccuro
loads gravel and is under OSHA jurisdiction, and that Agerwald
was conducting "test trial runs" at its loading facility to
determine whether it was working properly (Tr. 41).

 On cross-examination, Mr. Delovich confirmed that there are

three other loading facilities operating in the vicinity of
Marion Docks, and he identified them as Seccuro, Agerwald, and
Preston Energy. He stated that Seccuro is the only one which has
not been inspected by MSHA. He explained that although Seccuro
loads coal at its dock, it also loads gravel, and that MSHA's
legal identification information for that facility reflects that
it is under OSHA enforcement jurisdiction and is inspected by
that agency and not by MSHA (Tr. 49). Although Seccuro has one
conveyor belt and one loading bin for loading coal on barges,
since it also loads other rock minerals, the jurisdictional
interpretation communicated to him (Delovich), is that Seccuro is
subject to OSHA, rather than MSHA, jurisdiction (Tr. 50). Mr.
Delovich confirmed that he has never inspected the Seccuro
facility, although he has visited the site to observe the
operation, and he stated that "from what I understand, they load
rock too. I have no jurisdiction" (Tr. 50).

 With regard to the Agerwald loading facility, Mr. Delovich

stated that when he visited that site to conduct an inspection,
he was informed that coal was being loaded "for a trial run."
Upon return to his office after that visit, Mr. Delovich stated
that Agerwald apparently called the MSHA district office, and
that office advised him (Delovich) that "they said something
about a trial run and that he was not under our jurisdiction and
that in all probability he wouldn't be under our jurisdiction
because he did not fit into the guidelines of what a barge
loading facility would be" (Tr. 52). When asked about any MSHA
guidelines concerning jurisdiction, Mr. Delovich responded "If
they are loading other things such as rock or anything or don't
own a mine" (Tr. 52). He confirmed that the Marion Docks facility
loads only coal, while Agerwald loads coal, rock, and lime, and
other minerals. When asked whether the kinds of minerals which
are loaded is the determining factor as to whether OSHA or MSHA
jurisdiction applies, Mr. Delovich responded ". . . it is not
for me to determine. I question it too" (Tr. 53). He also stated
that ". . . we are told that if they size the coal, blend the
coal or clean the coal--that is under our jurisdiction" (Tr. 54).

~1598
In response to a bench inquiry of MSHA's counsel as to any
applicable MSHA guidelines for determining jurisdiction, counsel
responded as follows (Tr. 53):

      MR. CRAWFORD: No, there were no guidelines other than
      the case law, Your Honor, but it has been my
      understanding that because there were other facilities
      and they were loading lime and other materials, it was
      felt that they didn't fall under the jurisdiction, plus
      they were not treating in the same manner.

 Mr. Delovich stated that it was his understanding that MSHA

Inspector Ron Myer was dispatched to the Agerwald loading
facility to obtain the information for a determination of
jurisdiction, and that the information was taken back to the MSHA
district office for a determination by district manager Ron
Keaton (Tr. 55). Mr. Delovich confirmed that he has never
discussed the Marion Docks case with Mr. Keaton, and that he did
not report the fact that Marion Docks was loading coal to Mr.
Keaton. Mr. Delovich did not know who may have made such a
report. Mr. Delovich identified his supervisor as Steve Kuretza,
from MSHA's Fairmont field office, and confirmed that he has
never discussed the jurisdictional question concerning Marion
Docks with Mr. Kuretza (Tr. 57). He also confirmed that he has
never seen a copy of a March 9, 1988, letter from Marion Docks
counsel Lawrence to Mr. Kuretza questioning MSHA's enforcement
jurisdiction (Tr. 57). Mr. Delovich stated that since the
issuance of the contested orders of March 1, 1988, he has
inspected the Marion Docks facility for respirable dust
compliance and has done so as part of his regular inspection
assignments by Mr. Kuretza (Tr. 58).

 Mr. Delovich could not identify by name the trucking

companies which have transported coal to the Marion Docks
facility, and he surmised that they were independent trucking
companies. He confirmed that he has inspected these trucks for
brakes and back-up horns once they enter the Marion Docks
property, but has no jurisdiction to inspect them while on the
highway in transit (Tr. 60). He also confirmed that MSHA has
inspected Marion Docks since it first started its operation in
1985, and that the mine ID information for the facility was filed
with MSHA by Marion Docks. Marion Docks also filed its training
program information with MSHA (Tr. 61-62).

~1599
Contestant's Testimony and Evidence

 Kevin J. Bealko, President, Marion Docks, testified that his

company is a coal loading facility which was constructed "to
tipple coal for various producers here in Marion County because
the main reason being that the B & O Railroad was putting us out
of business up here and we wanted to get on the river and stay
active in the coal fields" (Tr. 74). He confirmed that the
corporate officers consist of himself as president and one-third
owner, and co-owners Charles Sorbello and Frank Miller. He stated
that the dock is used solely as a means of accommodating 15
different mine operators that haul coal to the facility for the
purpose of selling it. Marion Docks does not take title to the
coal, has no direct sales contracts with any of the utility
companies, and all of the sales are handled through brokers.
Marion Docks owns no coal mines or coal reserves, conducts no
mining operations, and has no connection with any mines. Its sole
occupation is that of a dock facility (Tr. 75-76).

 Mr. Bealko stated that Marion Docks does not purchase the

coal that is shipped to the dock by the producers, but does have
an "agent account" whereby brokers act as agents for Marion Docks
for the purpose of handling the coal for the utility customers
who purchase it from the brokers. Marion Docks has no direct
sales contracts with any utility customers, but it does have
sales agreements with brokers who in turn have utility sales
contracts. In further explanation of these broker-customer
arrangements, Mr. Bealko stated as follows (Tr. 76-77):

      Q. Okay. So, then is it correct that the broker has the
      contract with the utility or with the customer, the
      ultimate customer?

      A. Right, correct. They order up our barges and they
      tell us what spec as you have to hit in any coal that
      you load at any place, whether you are Consol or little
      Marion Docks. You have to hit a certain specification.
      That may be size or that may be ash or that may be
      sulphur or it may be all three. Our brokers notify us
      when the barges are coming and what specification we
      have to meet on those barges, as anyone does, like
      Consol or Island Creek or Peabody or no matter who you
      are, or Seccuro or Agerwald. They have got a spec they
      have to hit. That is just the nature of the coal
      business. You just don't load a coal from a

~1600
particular job that hits that spec. It is a spec that may fit one
job but when you are loading three different types of orders that
we have, you have got to do it over a period of 15 jobs to make
it all work through the course of a month.

 Mr. Bealko confirmed that upon arrival of the coal at its

site, it is weighed, and if it is oversized and does not meet the
broker's specifications, it is processed and crushed through belt
hoppers and bar grizzlies that take out all of the coal fines.
Approximately 10 percent of the larger coal of more than 4 inches
goes to picking tables and crushers. He confirmed that the larger
coal sizes cannot pass through the tipple or the bucket unloaders
at the utility power plants, and that the utilities do not like
any coal sized larger than "four by zero" (Tr. 78).

 Mr. Bealko also confirmed that his facility receives coal

which is already sized at "four by zero." This coal, which
amounts to 10 percent of each load, is taken directly to the
surge hopper without crushing, and is dumped into the barges by
means of conveyor belts. The coal under 4 inches never crosses
the picking table or the crusher (Tr. 79). No coal washing or
cleaning takes place, and only 4 percent of the coal ever "gets
picked" at the picking table, and most of it goes to the crusher
(Tr. 80).

 Mr. Bealko stated that his facility uses equipment such as

belt conveyors and front-end loaders, but it does not have
cyclones, washer plants, or scalpers to remove different pyritic
impurities, and he described the equipment which is used as
follows (Tr. 80-81):

      A. We have two high-lifts. We have the facility itself
      which is two bins that goes onto a belt that goes up to
      this bar grizzly that takes the fines away and that
      goes up to a radial stacker that drops into this surge
      hopper that goes over to the barges. The other part is
      the product that doesn't cross the grizzly that goes on
      to the picking table and goes into the crusher and at
      that point it winds up on the radial stacker and it
      goes up into the stockpile to the surge hopper that
      goes into the barges.

 Mr. Bealko confirmed that his company does not own the

barges that transport the coal from his facility, or the

~1601
trucks that haul coal to the site. The truckers are independent
contractors who "order up their trucks depending on what coal
they have to haul" (Tr. 82). With regard to the inspector's
reference to the Willow Island power plant, Mr. Bealko denied
that his company has ever shipped coal to that utility. He
confirmed that it does load coal for the Pleasants power plant,
and other plants as determined by the coal brokers (Tr. 83).

 Mr. Bealko confirmed that Mr. Sorbello owns one-half of the

M & J Coal Company, a deep coal mine producing low sulphur coal,
and that the majority of that coal comes to Marion Docks, and
constitutes one-sixth of all coal production that comes to the
dock from all mines. Mr. Markovich is also an owner of that mine.
Mr. Bealko stated that he and Mr. Miller have no ownership
interest in any coal mines, either as stockholders or corporate
officers (Tr. 84).

 Mr. Bealko stated that prior to the design and construction

of the Marion Docks facility, he operated tipples on the B & O
railroad. The Bell Mining Company and other coal companies loaded
coal at that facility, and he was aware of the fact that since
coal was tippled at this facility, it was subject to MSHA's
jurisdiction. Since his Marion Docks plant was the "same type of
plant" as Bell Mining Company, and since MSHA inspectors advised
him that Marion Docks would be inspected when it became
operational, he took great pains to insure that his facility
would be approved by MSHA and stay in compliance with MSHA's
safety requirements. For these reasons, he filed for an MSHA mine
ID number and operated for 2 1/2 years loading coal and being
inspected by MSHA. However, when he learned from MSHA inspectors
that three other docking facilities in his area who operated
facilities similar to his were not being inspected by MSHA, he
then began to question MSHA's jurisdiction over his facility
because "our identity and our dock is no different from any
identity over any of the other docks up in our area (Tr. 85-86).

 Mr. Bealko indicated that with the exception of the Seccuro

Dock, which also loads stone, the other docks do precisely what
his does. He stated that the R.P. Agerwald Dock only crushes and
loads coal from independent coal producers, and "comingles it to
hit certain specs just like we have to do, and he puts it in
barges which are ordered up from brokers just like we have to do"
(Tr. 87).

 Mr. Bealko explained that the operator of the Agerwald Dock

retained an attorney who contacted Inspector Delovich's
supervisor, Mr. Kuretza. As a result of this, Inspector

~1602
Delovich inspected the Agerwald operation and reported to Mr.
Kuretza "that there were many problems with that facility as far
as coming under MSHA to be approved, and Mr. Kuretza said, hey,
leave it alone; we got a phone call from their attorney that says
they are not under our jurisdiction, they are under OSHA, which I
know is not pertinent to our situation but maybe it is because he
is right across the river from us tippling coal just like we are"
(Tr. 89).

 On cross-examination, Mr. Bealko stated that the coal broker

is the customer who provides the coal specifications to Marion
Docks, and Marion Docks provides the coal according to those
specifications. He confirmed that Marion Docks has never had any
of the coal which it has loaded for shipment ever rejected
because it did not meet the required specifications. He indicated
that the "specifications" concern the size of the coal for
unloading purposes, as well as the quality of the coal in terms
of ash and low and high sulphur content, "as all specifications
do," and that Marion Docks brings in coal to meet those
specifications (Tr. 93-94).

 Mr. Bealko stated that "the broker kind of orders the coal

from the mine. All we do is wait for the coal to show up on the
dock and then we put that coal in the barges for those producers"
(Tr. 94). Marion Docks knows that the coal which is shipped meets
the required specification, and it receives payment from the
broker and not the utility, and the broker takes title to the
coal when it is shipped from the dock. Marion Docks is aware of
the locations where the coal is shipped to in accordance with the
specifications from the brokers who ordered the barges, and Mr.
Bealko stated that "we have to in order to, you know, hit that
specification that they are calling for." The receiving plant
transmits its required specifications through the broker to the
coal producer, and Marion Docks handles the coal at the dock for
the producer so that it meets the specifications before it leaves
the dock (Tr. 95).

 Mr. Bealko confirmed that Mr. Sorbello, one of his partners

in Marion Docks, is the only shareholder who holds an ownership
interest in the M & J Coal Company and the Bell Mining Company, a
soft surface mine. Mr. Bealko also confirmed that Marion Docks
accepts coal for shipment from the M & J mine, and at times from
the Bell mine (Tr. 96-97).

 Mr. Bealko confirmed that only 10 percent of the coal

received at the Marion Docks for shipment goes to a picking
table, and only 3 or 4 percent of that ever gets picked. Picking
is done to prevent big rocks and roof bolts from

~1603
accidentally reaching and ruining the crusher, or causing
problems when it is off-loaded at a plant (Tr. 97). In the event
the specifications call for the crushing of the coal, it is
crushed by Marion Docks, but only 10 percent of the coal that
reaches the picking table is crushed. The reason for the crushing
is to meet a particular specification or to insure that it can be
loaded in the barge and off-loaded at the plant. He further
explained as follows (Tr. 99-100):

      A. Well, specifications are one thing. That is an
      analytical point of view on moisture, ash, sulphur,
      BTU. Sizing is something else. That is a whole separate
      specification, if you want to call it. It is a sizing
      specification versus an analytical specification.

      Q. Do you have to consider both when you load?

      A. For particular orders, yes. Some yes and some no.
      JUDGE KOUTRAS: Well, he has got to consider what the
      broker orders up, don't you?

      THE WITNESS: Exactly.

      JUDGE KOUTRAS: If a broker orders up all crushed coal,
      fines, from a customer, then you are going to have to
      ship it, aren't you?

      THE WITNESS: Well, like I say --

      JUDGE KOUTRAS: Or else reject the broker and tell the
      broker to find some other shipper.
      THE WITNESS: Somebody else to load it, right. But most
      of our coal is a four by zero product for our
      particular plants that our coal winds up to.

      JUDGE KOUTRAS: But the point is that you have to
      deliver and load coal that is specifically to the
      specifications of the customer who goes to the broker
      who, in turn, tells you, hey, this is the coal that has
      to go to customer "A" isn't that true?

      THE WITNESS: Correct.

~1604
Mr. Bealko confirmed that Marion Docks ships coal from 15
different coal producers who truck coal to the facility, and in
response to a question as to whether or not he tests the coal for
BTU, ash, and sulphur content, or rejects any coal and sends it
back to the producers, Mr. Bealko stated as follows (Tr.
102-103):

      A. We have a general understanding of what mines are
      coming in. The broker takes most of the samples out in
      the field at the mines prior to coming into the loading
      facility. We know at that point what coal goes on what
      order because the broker is more or less handling the
      sample. They have their own lab and everything. As far
      as Marion Docks actually doing any of the sampling, it
      is out of our hands because the broker handles most of
      that. What we know is that coal company "A" is hauling
      in and it is at a certain spec and that is what it is
      supposed to hit. We put it into the barge. You know, it
      is up to the broker and the producer to make sure that
      that happens. All we are doing is sizing the coal and
      putting it into the barge.

And, at (Tr. 120-122):

      A. The broker organizes the sampling of the coal as it
      goes into the barges.

      Q. Well, he organizes, but where is it done physically?
      Where is the sampling done? Is it done there at the
      dock?

      A. It is done at the plant but they do a preliminary
      sampling when the coal is being loaded into the barges
      periodically to make sure the coal is being loaded, you
      know, prior to going to the customer correctly.

      Q. What plant are you talking about?

      A. The power plant. In other words, the coal gets
      sampled at the plant. It is done through an automatic
      sampler.

      Q. Okay.

~1605
A. On occasion, most brokers will spot check the coal being
loaded at the docks.

      Q. Okay.

      A. So, they will come in with an independent lab that
      goes in and samples the barges prior to it being
      shipped down river so they know the specification of
      the coal prior to it going to the plant, so they can
      represent to their customer that here is what we have
      loaded and here is what is coming to you.

      Q. And, Marion Docks is not involved in that at all.

      A. No, no, we leave that strictly up to the broker.
      That is their connection with the plant. All we do is,
      like I say, the handling of the coal that goes into
      that barge.

 Mr. Bealko confirmed that all of the coal shipped from

Marion Docks goes to utility companies in the "tri-state area,"
and in some circumstances the coal is shipped out of state (Tr.
105). In the event barges are unavailable for a shipment of coal
which has been ordered to a particular specification, the coal is
stock piled at Marion Docks. If a barge is available, the coal is
processed through the facility, and is sized. If it is already
sized, it is taken to a surge hopper, dumped in a bin, and
transported by a conveyor belt to the barge. Some of the coal
which has been previously sized, screened, or washed at the mine,
goes directly to the barge (Tr. 107). In response to a question
as to what would occur if coal is trucked to Marion Docks from
different coal producers and no barges are readily available for
immediate shipment, Mr. Bealko responded as follows (Tr.
108-110):

      JUDGE KOUTRAS: And, what happens to them? Are they
      stockpiled in 15 different piles?

      THE WITNESS: No. Normally in our plant right there, we
      can crush coal or size coal or stockpile coal ahead of
      the barges getting there.

      JUDGE KOUTRAS: Okay. Knowing that the customer's needs
      are.

      THE WITNESS: Exactly. We will know from the broker
      which barge is ordered up, and we can go

~1606
ahead and crush or size or just place coal over the bin on five
to six barges prior to the barges showing up.

    JUDGE KOUTRAS: So, you do, in fact, then, if you pardon
    the expression, and it might bring a twinge to counsel
    over there at the table, Mr. Lawrence, but you do
    custom blending, don't you, loosely stated?

    THE WITNESS: Or we use one particular coal for one
    order and one particular coal for another order and
    some of it gets stockpiled and some of it gets
    processed for the barges coming in.

    JUDGE KOUTRAS: But depending on what the broker tells
    you, theoretically you could --

    THE WITNESS: Load what -- there is not one particular coal
    for a particular order that comes in down there.

    JUDGE KOUTRAS: That's what I'm saying. So, you crush
    and blend and size and stockpile awaiting the barge to
    the specification of the customer, of a customer; isn't
    that true?

    THE WITNESS: In most circumstances.

    *     *     *     *     *     *       *    *          *      *

    THE WITNESS: We are just more or less the loader.

    JUDGE KOUTRAS: I know but in order for you to ship the
    right coal, the right blend of coal --

    THE WITNESS: Oh, we have to know the specifications.

    JUDGE KOUTRAS: -- you have to know the specs, don't you?

    THE WITNESS: Exactly.

    JUDGE KOUTRAS: And, you do, in fact, do the blending
    process, don't you?

~1607
THE WITNESS: If the coal needs to be blended, we do it.

      JUDGE KOUTRAS: If it needs to be done, you do it.

      THE WITNESS: We do it, right.

      JUDGE KOUTRAS: And, if it doesn't --

      THE WITNESS: Right.

      JUDGE KOUTRAS: In other words, if all of this was done
      prior to coming to Marion Docks, all of the sizing and
      the blending and the washing, and it is just ready to
      be shipped, then it will simply go from the mine,
      already processed, to truck and to the barge, right?

      THE WITNESS: Exactly.

      JUDGE KOUTRAS: There wouldn't be any need to go through
      this intermediary stop.

      THE WITNESS: Exactly.

 In support of its motion for summary decision, the

contestant submitted the affidavit of Charles J. Sorbello, Marion
Docks Vice-President, and it states in relevant part as follows:

      1. Marion Docks is a privately-owned West Virginia
      corporation. It is not a subsidiary or division of any
      other corporation, nor is it the parent or holding
      company for any corporation.

      2. Marion Docks owns and operates a coal loading
      facility and dock located on the Monongahela River in
      Fairmont, West Virginia. It does not own or lease any
      other real property.

      3. At this loading facility, Marion Docks receives coal
      which is stocked on to its site and loads such coal
      onto river barges. The coal that is received at the
      site is transported from deep and surface mines not
      owned or leased by Marion Docks. When the coal arrives

~1608
at the Marion Docks' site, it is dumped and stockpiled on pads.
The coal is then loaded into a tipple where the coal is crushed
and then loaded into river barges. Marion Docks does not own or
operate a washing or preparation plant, nor does it blend the
coal before loading it onto barges.

      4. Marion Docks does not own the coal which it receives
      for shipment.

      5. Marion Docks' facility is not located on land from
      which minerals are extracted, nor is it appurtenant to
      such a mining area.

      6. Marion Docks' facility is not a facility used in
      conjunction with the work of extracting minerals from
      the ground.

Contestant's Arguments

 In support of its assertion that its Marion Docks loading

facility is not a mining operation within the meaning of the Act,
the contestant advanced the following factual and legal
arguments.

 Marion Docks is a privately-owned West Virginia corporation.

It is not a subsidiary or a division of any other corporation,
nor is it the parent or holding company for any corporation.
Marion Docks owns and operates a coal loading facility and dock
located on the Monongahela River in Fairmont, West Virginia. It
does not own or lease any other real property.

 At its loading facility, Marion Docks receives coal which is

trucked on to this site. The coal which is received at the site
is transported from deep and surface mines not owned or leased by
Marion Docks. The coal is hauled by independent operators, not
employed by Marion Docks. In addition, the trucks driven by such
operators are not owned or leased by Marion Docks.

 When the coal arrives at the barge loading facility, it is

dumped and stockpiled on loading pads. The coal is then loaded
into a tipple where it is loaded into river barges. Marion Docks
does not own or operate a washing or preparation plant nor does
it blend the coal before loading it onto barges. Marion Docks
does not take title to the coal which it receives for shipment.

~1609
The Marion Docks facility is not located on land from which
minerals are extracted nor it is appurtenant to such a mining
area. Marion Docks' facility is not a facility used in
conjunction with the work of extracting minerals from the ground.

 Marion Docks owns no coal reserves or coal leases. Marion

Docks' customer is a coal broker with a contract for supplying
coal to a utility located along the Ohio River. The broker is a
separate corporate entity unrelated to Marion Docks. Neither the
broker, nor Marion Docks, share common officers, shareholders, or
directors. The broker orders the coal directly from one of a
dozen mines which ship coal to Marion Docks. The broker also
schedules delivery and arrival of the coal trucks to Marion
Docks. The coal broker also arranges for arrival of river coal
hauling barges at the Marion Docks facility. The broker is aware
of the mineral and Btu qualities of the coal produced by each of
the mines trucking coal to the Marion Docks facility. Marion
Docks does not conduct tests to determine the specifications of
any coal delivered to it. The broker either checks the
specifications at the mine or at the Marion Docks facility.

 The loading facility used by Marion Docks consists of a

tipple facility comprised of moving conveyor belts. In the
tippling process, the coal is crushed to pieces smaller than 4
inches square for ease of loading and unloading onto the river
barges. In addition, the coal is passed over sizing screens
thereby allowing all coal of the proper dimensions to pass onto a
conveyor belt for direct loading onto the barges. Approximately
10 percent of the material does not drop through the sizing
screens but is conveyed onward to a picking table for removal of
rocks, bolts, other metal, and oversize chunks. This function
serves a dual role of protecting the loading and unloading
equipment and removal from the coal of nonspecific materials.

 Inspector Delovich testified that he is informed by his

superiors that a loading facility is subject to MSHA jurisdiction
if it sizes, blends or cleans coal. He believed that Marion Docks
sized and blended coal at its loading facility, although he
agreed that the coal was not cleaned at the facility. Inspector
Delovich also indicated that he has been instructed that if a
loading dock is engaged in the loading of materials other than
coal (e.g. gravel) then that facility is not subject to MSHA
jurisdiction. He referred to a loading facility located adjacent
to the Marion Docks facility which

~1610
loaded both coal and gravel and indicated that to his knowledge
MSHA had not exercised jurisdiction over that facility because of
the gravel loading operations.

 Contestant concludes that its Marion Docks facility does not

fall within the statutory definition of the term "coal or other
mine" because it is not "an area of land from which minerals are
extracted" nor is it the "private ways and roads appurtenant to
such areas" as provided for in the geographic parameters of a
mine as defined in 30 U.S.C. 820(h)(1). With regard to the
functional definition of a mine facility used in the extraction
or preparation of coal, contestant asserts that it is the term
"work of preparing the coal" as defined in 30 U.S.C. 802(i)
which provides that Marion Docks is not subject to the
jurisdiction of the Act. Contestant points out that this
definition defines coal preparation 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." (Emphasis added.)

 In support of its argument that it is not subject to MSHA's

enforcement jurisdiction, contestant cites the case of Secretary
of Labor v. Oliver Elam, Jr., Company, Inc., 4 FMSHRC 15 (1982),
a case in which the Commission affirmed a Judge's decision that
Elam's loading facility was not a "mine" subject to the Act.
Contestant points out that in Elam the Commission indicated that
the proper inquiry should focus on the nature of the operation
and not solely upon whether or not one or more of the activities
listed in section 802(i) of the Act was performed. Contestant
argues that the Commission focused on several factors which are
also present in its case, including the fact that the loading
dock did not contract with either the mine operators from whom it
received the coal nor with its customers to whom it delivered the
coal, and concluded that although the coal was loaded through a
tipple facility which included a hopper, crusher and conveyor
belts, those facilities were used for loading the coal rather
than for preparing it to meet market specifications.

 In addition to the Elam case, contestant cites a decision by

the United States District Court for the Southern District of
Indiana, Donovan v. Inland Terminals, Inc., 3 MSHC 1893 (March
1985), in which the court found that MSHA lacked enforcement
jurisdiction over a loading facility whose operator had no
contracts directly with the coal operators from whom it received
the coal nor with the customers who used the

~1611
coal, and where the breaking, crushing and loading of coal was
done to facilitate the loading operation.

 Contestant maintains that its case is similar to the Elam

and Inland Terminals cases, and dissimilar from the cases cited
by MSHA in support of its jurisdictional argument, namely, Little
Sandy Coal Sales, Inc. v. Secretary of Labor, 7 FMSHRC 891 (June
1985), and Secretary of Labor v. Mineral Coal Sales, Inc, 7
FMSHRC 615 (May 1985). In Little Sandy Coal Sales, Inc., the
Commission found jurisdiction because the facility purchased raw
coal from local mines, custom processed it, sized it to meet
market specifications depending upon customer demands, and then
loaded it onto barges for delivery to users. In Mineral Coal
Sales, the Commission affirmed my jurisdictional finding that the
"operation carried out by Mineral includes the custom blending
and loading of coal to meet the . . . specifications and needs
of its brokers and customers," and found that the various
operations taking place at the Mineral Sales single site, when
viewed as a collective whole, indicated that the facility was a
mine. In essence, the Commission found no distinction between the
loading facility and the broker who arranged such shipments and
sales, and oversaw the custom blending. Contestant views this
fact as a critical distinction from its case "where the Marion
Docks facility is owned and operated primarily by Kevin Bealko,
who has no interest in either the broker or any of the mines
which ship coal through the facility."

                    Findings and Conclusions

The Jurisdictional Question

 Section 4 of the 1977 Mine Act, 30 U.S.C.   803, states:

"Each coal or other mine, the products of which enter commerce
. . . shall be subject to the provisions of this Act."

 Section 3(h)(1) of the Act, 30 U.S.C.    802(h)(1)(C),

defines "coal or other mine" in relevant part as: "(C) lands,
. . . structures, facilities, equipment, machines, tools, or
other property . . . used in, or to be used in, or resulting
from . . . the work of preparing coal or other minerals, and
includes custom coal preparation facilities."

 Section 3(i) of the Act, 30 U.S.C.   802(i), defines the

term "Work of preparing the coal" as follows: " "[W]ork 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

~1612
of preparing such coal as is usually done by the operator of the
coal mine."

 The critical issues in this case are whether or not the

loading operations taking place at the Marion Docks facility
involve the "work of preparing the coal," and whether or not that
facility is a "mine" subject to MSHA's inspection and enforcement
jurisdiction. Contestant relies on the decisions in Secretary of
Labor v. Oliver Elam, Jr., Company Inc., 4 FMSHRC 5 (January
1982), and Donovan v. Inland Terminals, Inc., 3 MSHC 1893 (March
1985), in support of its argument that MSHA lacks jurisdiction in
this case. MSHA relies on the decisions in Little Sandy Coal
Sales, Inc., v. Secretary of Labor, 7 FMSHRC 891 (June 1985), and
Secretary of Labor v. Mineral Coal Sales, Inc., 7 FMSHRC 615 (May
1985), in support of its argument that MSHA has jurisdiction in
this case. An examination of these precedent decisions involving
coal loading and preparation facilities engaged in activities
similar to those by Marion Docks follows below.

 The Elam case concerned a commercial dock operator whose

loading facility loaded steel, ingot cars, pipe, tar pitch, and
coal onto barges. Approximately 40 to 60 percent of the tonnage
loaded at the dock was attributable to coal which was shipped to
the customers of coal brokers who paid Elam to load the coal for
shipment to customers designated by the brokers. Elam also owned
construction equipment such as cranes, trucks, and bulldozers
which it leased to others, and its employees were used
interchangeably in its dock and equipment rental operations. The
coal which was crushed by Elam was essentially crushed to one
size solely to facilitate the barge loading process, and Elam did
not prepare coal to market specifications or for any particular
use, nor did it separate waste from coal or add any material to
it.

 In Elam, the Commission held that inherent in any

determination as to whether an operation is properly classified
as "mining" is an inquiry not only into whether the operation
performs one or more of the activities listed in section 3(i) of
the Act, but also into the nature of the activity performing such
activities. Upon examination of Elam's activities with respect to
its "work of preparing the coal" to make it "suitable for a
particular use or to meet market specifications," the Commission
concluded that Elam's handling of the coal, which included
storing, breaking, crushing, and loading, was done solely to
facilitate its loading business and not to meet customer's
specifications or to render the coal fit for any particular use.
4 FMSHRC, at 7-8 (January 1982).

~1613
The Inland Terminals case was before the Court on a motion by the
Secretary of Labor for a preliminary injunction enjoining Inland
from denying entry to MSHA inspectors who sought to inspect
Inland's operations. The facts in that case, as found by the
court, reflect that Inland was a commercial dock operator who in
addition to loading coal onto barges for its coal broker
customers, also engaged in the business of repairing, rigging,
and cleaning barges for any customers requiring such services.
Upon instructions from its coal broker customers, to load a
certain amount and type of coal, Inland ran the coal through its
crushers, and occasionally blended different types of coal based
upon the specifications which the broker customers found
necessary to fulfill its contracts. Of the four crushers used by
Inland to facilitate its loading operation, only one had the
capability to separate coal from rock or other waste materials,
and approximately 10 percent of the coal loaded bypassed the
crushers and was loaded directly onto the barges. Notwithstanding
the fact that Inland on occasion blended coal to customer
specifications, the Court, relying on the Commission's Elam
decision, found that Inland was not a mine covered by the Act,
and stated as follows at 3 MSHC 1895:

           The Court recognizes that certain factors in
      this case are distinguishable from the facts in Elam.
      However, based upon the facts presented at the hearing
      the Court concludes that, like Elam, the nature of Inland's
      operation militates more strongly toward a finding that
      Inland is a shipping or loading facility that handles
      coal and is not a "mine."

 In the Mineral Coal Sales, Inc., case, the cited operator

owned a facility known as Mineral Siding, which handled solely
coal, and the facility consisted of a railroad siding, a storage
yard, and a trailer that housed laboratory equipment for testing
coal. Equipment at the site included a truck scale, a mobile
tipple that crushed coal and conveyed it to railroad cars, a
stationary tipple, grading tipple, and front-end loaders used to
transfer coal from various stockpiles to the tipples. Mineral
Coal Sales extracted no coal itself and was not affiliated with
any producing mine or transportation company. The coal handled at
its facility was purchased by coal brokers from producing mines
or independent truckers. The brokers arranged for delivery of
coal by truck to Mineral Siding and, after loading, for delivery
by rail to the various customers of the brokers. Mineral Coal
Sales charged the brokers a flat rate per ton of coal loaded onto
the railroad cars.

~1614
Coal trucked to Mineral Siding was weighed on a truck scale by an
employee of Hubbard Enterprises, a coal broker operating at
Mineral Siding. Coal of substantially the same quality was
stockpiled together, and once the coal was stockpiled, Hubbard
tested it to determine BTU, ash, and sulphur content, and its
free swelling index. When coal was ready to be loaded for
shipment to a customer, Hubbard informed Mineral Sales as to how
many scoops of coal should be taken from particular stockpiles in
order to fill the appropriate number of railroad cars comprising
the order. Mineral Sales would then draw off the proper number of
scoops from the stockpiles and dumped them into the hopper of the
mobile tipple. A Mineral Sales employee operated the tipple and
oversaw the loading of the railroad cars. The coal passed from
the tipple hopper into a crusher unit where it was crushed to a
uniform size. The coal then traveled on the tipple conveyor belt
for loading into the railroad car. Once the car was loaded,
Hubbard again sampled and tested the coal to ensure that the load
met the specifications of the respective order. A stationary
grading tipple was also present at the Mineral Siding facility.
Coal passed over various sizing screens to separate "lump,"
"egg," and "stoker" coal, and the tipple was used primarily to
produce coal for domestic consumption.

 In contesting MSHA's enforcement jurisdiction, Mineral Coal

Sales maintained that it was not a mine operator and that its
Mineral Siding facility was not a mine. In my decision at 6
FMSHRC 809 (April 1984), I rejected both arguments, and found
that unlike the operation involved in the Elam case, the coal
loading process carried out at the Mineral Siding facility
included a procedure and practice whereby the coal which was
ultimately loaded and shipped to the customers of the broker
(Hubbard) was mixed to their specifications and standards. I
further found that the operation carried out by Mineral Coal
Sales included the custom blending and loading of coal to meet
the specifications and needs of Hubbard's customers. 6 FMSHRC at
840.

 Upon review of my decision, the Commission affirmed my

jurisdictional findings and conclusions, and stated as follows at
7 FMSHRC 620:

      [W]e have no difficulty concluding that the business
      engaged in at Mineral Siding constitutes "mining" under
      the Act. At this facility coal is stored, mixed,
      crushed, sized, and

~1615
loaded--all activities included in the statutory definition of
coal preparation. Furthermore, an examination of the nature of
the Mineral Siding operation reveals that, unlike the commercial
loading dock in Elam at which was coal crushed merely to
facilitate loading and transportation on barges, at Mineral
Siding all of the above listed work activities are performed on
the coal to make it "suitable for a particular use or to meet
market specifications.". . . Thus, coal preparation occurs at
Mineral Siding and MSHA properly asserted its inspection
authority over the facility.

 In response to Mineral Sales' contention that its employees

at the Mineral Siding facility merely loaded coal from two or
three different stockpiles under the direction and control of the
broker Hubbard, a separate entity, the Commission ruled that the
operations taking place at a single site must be viewed as a
collective whole. Given the active presence and control exercised
by Mineral Sales at the site, including the intermingling of
personnel and functions among the various entities at the site,
and the operation and supervision of the site by Mineral Sales
after it terminated the various lease arrangements, the
Commission concluded that Mineral Sales was properly found to be
the operator of the mine.

 Little Sandy Coal Sales, Inc. concerned a coal processing

plant which purchased coal from local mines and processed it for
household and commercial sales. Judge Melick relied on the
Mineral Coal Sales decision in finding jurisdiction, and
concluded that the storing, mixing, crushing, sizing, and loading
of coal by Little Sandy to make it "suitable for a particular use
or to meet market specifications," constituted a mining
operation, and that MSHA properly asserted its inspection
authority over the facility.

 The facts in this case show that the contestant operates a

coal loading tipple facility which loads and ships coal by river
barges to several utility customers who purchase the coal from
brokers. The brokers arrange for the purchase and sale of the
coal which is produced at several mines and then shipped to
Marion Docks by independent truckers. The contestant's president,
Kevin Bealko, confirmed that he had previously operated coal
tipple facilities on the B & O Railroad, and that he loaded and
shipped coal produced at several local mines from that facility.
Upon construction of the Marion Docks facility, which Mr. Bealko
characterized as the "same

~1616
type of plant" as the previous tipple facility, and believing
that MSHA would begin inspecting the new facility "just like any
other tipple that they inspected," the contestant filed for and
received an MSHA Mine ID number. The facility was then inspected
on a regular basis by MSHA for a period of 2 1/2 years, and the
inspections have continued to the present. Mr. Bealko confirmed
that his jurisdictional question was raised when he recently
learned that other similar dock facilities in close proximity to
his are not inspected by MSHA. Mr. Bealko identified one in
particular, the R.P. Agerwald Dock, and he claimed that it is
identical to his operation, but is not inspected by MSHA because
of an asserted lack of jurisdiction.

 The evidence adduced in this case establishes that the

Marion Docks facility handles and processes coal which is trucked
there from approximately 15 producing mines. The facility is
equipped with a scale house, end loaders, hoppers, crushers,
conveyor belts, chutes, draw-off tunnels, picking tables, bar
grizzlies, stackers, bins, and hi-lifts, all of which are used to
process and prepare coal for loading and shipment to utility
customers. Although the coal is not washed, some of it is
conveyed to picking tables where slate and other debris is
"picked" from the coal. Some of the coal which has been sized or
crushed at less than 4 inches before its arrival at the facility
may be taken directly to a barge for loading, if one is readily
available. If not, the coal is stockpiled. Coal which is larger
than 4 inches and cannot pass through the loading tipple or the
bucket loaders which receive it at the utility is conveyed to the
crushers and picking tables, and coal which does not meet the
broker's specifications is processed through hoppers and bar
grizzlies which remove all of the coal fines.

 The thrust of the contestant's jurisdictional argument is

that it has no ownership interest or connection with any of the
producing mines which ships coal to its facility, has no
connection with the coal brokers, and that the coal processed
through its facility is processed solely for the purpose of
facilitating the loading of the coal at the dock, and the
unloading of the coal at the point of destination. The contestant
denies that it is engaged in any "custom coal blending," and it
takes the position that none of its activities in connection with
the "work of preparing the coal" involves the preparation of coal
to meet customer market specifications.

 While it is true that there is no evidence that the

contestant, as a corporate entity, has any ownership interest in
any of the producing mines which ship coal to its facility, one
of

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its corporate officers, Charles Sorbello, has an ownership
interest in at least two mines which sells and ships coal through
the contestant's facility. However, I cannot conclude that these
facts are particularly critical to any jurisdictional
determination in this case. The fact that a coal preparation
facility may have no connection with the coal extraction process
or the mine operators who extract the coal is irrelevant to the
question of whether or not jurisdiction attaches under the Act.
See, e.g., Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d
589 (3d Cir.1979), cert. denied, 444 U.S. 1015 (1980); Marshall
v. Tacoma Fuel Co., No. 77-0104-B (W.D.Va. June 29, 1981);
Secretary v. Carolina Stalite Company, 6 FMSHRC 2518 (Nov. 1984);
Secretary v. Alexander Brothers, Inc., 4 FMSHRC 541 (April 1982).

 With regard to the question as to whether or not the

contestant's coal processing activities include custom blending
of coal to meet customer or market specifications, I take note of
Mr. Sorbello's affidavit in which he denies that any coal
blending is done before the coal is loaded for shipment. I also
take note of the fact that Mr. Sorbello did not testify in this
case, and that Mr. Bealko was the only witness called by the
contestant in support of its case.

 Inspector Delovich testified that he observed coal being

weighed, cleaned, crushed, stockpiled, and loaded at the Marion
Docks facility. Although he observed no blending taking place,
Mr. Delovich stated that in conversations with Mr. Bealko, Mr.
Sorbello, Mr. Markovich, and other inspectors, he learned that
blending was done at the facility. Mr. Delovich believed that low
sulphur Pittsburgh coal was being blended with the high ash
Sewickley coal, and that this was done as it was dumped and
stockpiled. Mr. Delovich testified that during an inspection at
the M & J Coal Company mine in connection with a mine fire, Mr.
Bealko, Mr. Sorbello, and Marion Docks superintendent Frank
Miller all expressed their concern in keeping the mine open
because of the need to blend its low sulphur and ash coal with
the other coal handled at the facility in order to sell it.

 During a bench colloquy with the contestant's counsel

regarding his motion for summary decision at the close of Mr.
Delovich's testimony, counsel conceded that the contestant
engaged in some of the activities connected with the breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing, and
loading of coal (Tr. 70). Except for the washing and drying of
coal, it seems clear to me that the evidence in this case
supports a conclusion that the contestant's facility engaged in
the other enumerated activities.

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With regard to any custom coal mixing or blending activities,
contestant's counsel agreed that Mr. Delovich's testimony
reflects that the coal processed at the facility is subjected to
some kind of a mixing process before it is loaded for shipment.
In the context of coal blending, counsel stated that "I think it
is nothing more than taking a scoop from one pile and a scoop
from another. To the extent that the loading facility does
something other than that, there has been no testimony to that"
(Tr. 69).

 Mr. Bealko testified that all of the coal handled and

processed at the Marion Docks facility must meet the customer's
specifications before it is loaded for shipment. At several
points during the course of his testimony, Mr. Bealko alluded to
the fact that his facility does mix and blend coal to meet the
specifications of a particular customer. For example, he stated
that any coal which arrives at the facility which does not meet
the broker's specifications is crushed and processed in order to
meet those specifications (Tr. 78). Brokers who "order up barges"
also inform Marion Docks as to the particular coal specifications
which must be met before the coal is loaded for shipment, and
these specifications may include the size of the coal, and its
ash or sulphur content (Tr. 77). Marion Docks must insure that
the coal meets the customer's specifications before it leaves the
dock (Tr. 95). Although crushing and sizing may be done to meet
the customer's coal size specification to facilitate the loading
and unloading of the coal, some particular customer orders
include analytical specifications to insure that proper moisture,
ash, sulphur, and BTU content are met (Tr. 99).

 Conceding that MSHA had jurisdiction over a prior coal

tipple loading operation which he operated prior to the
construction of his Marion Docks facility, Mr. Bealko
characterized his prior operation as the "same type of plant" as
the Marion Docks facility (Tr. 85). In explaining the coal
loading and crushing operation carried out by the R.P. Agerwald
Dock operating near his facility, Mr. Bealko stated that it
"comingles it to hit certain specs just like we have to do, and
he puts it in barges which are ordered up from brokers just like
we have to do" (Tr. 87) (emphasis added).

 Although Mr. Bealko confirmed that some of the coal which is

received at the Marion Docks facility is already sized and
prepared for shipment directly to a customer, he also confirmed
that if a barge is not readily available for loading, coal is
crushed and sized according to the customer's needs and then
stockpiled while awaiting the arrival of a barge for

~1619
loading (Tr. 108-109). Mr. Bealko candidly admitted that in most
circumstances, the coal processed at the facility is crushed,
sized, and blended at that facility in accordance with the
customer's specifications (Tr. 109). In response to a direct
question as to whether or not his facility is engaged in the
blending process, Mr. Bealko responded "if the coal needs to be
blended, we do it" (Tr. 110) (emphasis added).

 After careful review and consideration of all of the

testimony and evidence adduced in these proceedings, I conclude
and find that the activities carried out at the contestant's
Marion Docks facility constitutes "mining" under the Act, and
that those activities place the contestant within its
jurisdiction. The evidence establishes that the sole product
handled at the facility in question is coal which is mixed,
crushed, sized, stored, and loaded. All of these activities fall
within the statutory definition of "coal preparation," and brings
the contestant within the Act's jurisdiction. I reject the
contestant's contention that its handling and processing of coal
is merely to facilitate its loading and unloading. To the
contrary, while it is true that some of the coal is processed for
this purpose, the testimony and evidence adduced reflects that
coal is also in fact custom blended, mixed, crushed, and sized at
the facility in order to meet a particular customer's needs and
specifications.

 I reject the contestant's reliance on the Elam and Inland

Terminals decisions. Those decisions were based on facts which
indicated that the "work of preparing the coal" was accomplished
solely to facilitate the coal loading process, rather than
rendering the coal fit for any particular customer's needs or
specifications. In my view, the facts presented in the instant
proceedings are more akin to those presented in Mineral Coal
Sales, Inc., supra, where my finding of jurisdiction was affirmed
by the Commission.

Fact of Violations

 As stated earlier, the contests were filed by the contestant

for the purpose of contesting MSHA's jurisdictional claims, and
the contestant confirmed that in the event of an adverse decision
and rejection of its jurisdictional arguments, it will not
contest the violations further and will pay any proposed civil
penalty assessments for the violations in question. Under the
circumstances, and in view of my rejection of its jurisdictional
claims, all of the aforementioned contested citations and orders
issued by Inspector Delovich on March 1, 1988, ARE AFFIRMED as
issued.

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ORDER

 In view of the foregoing findings and conclusions, the

Notices of Contest filed by the contestant in these proceedings
ARE DENIED AND DISMISSED. The previously filed motions by the
contestant for summary decisions in its favor ARE LIKEWISE
DENIED, and the contested citations and orders are all AFFIRMED.

                             George A. Koutras
                             Administrative Law Judge