dissenting:
As I interpret the decision of the Federal Mine Safety and Health Review Commission, it held that RNS was engaged in the “work of preparing the coal” at the site in question because RNS there performed one of the specific activities listed in 30 U.S.C. § 802(i). The majority does not share the Commission’s view that the mere performance of any listed specific activity suffices. Rather, the majority holds that RNS was engaged in the “work of preparing the coal” at the site because it there performed a listed activity on a regular basis. I disagree with both the Commission’s and the majority’s view of the law. But even if the majority’s view of the law is correct, the rule of SEC v. Chenery, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), mandates a remand to the Commission. I therefore dissent from the majority’s denial of review.
I.
The Secretary’s exercise of jurisdiction was proper if RNS was engaged at the site in “the work of preparing coal.” 30 U.S.C. § 802(h)(1). Title 30 U.S.C. § 802(i) defines the “work of preparing the coal” as “the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.” It is undisputed that RNS “loaded” coal at the site for transportation to the Cambria facility-
In my view, the Commission believed that it was required by our decision in Pennsylvania Electric Co. v. FMSHRC, 969 F.2d 1501 (3d Cir.1992) (“Penelec ”), to hold that RNS was engaged in the “work of preparing the coal” at the site if RNS performed at the site any of the activities listed in 30 U.S.C. § 802(i), regardless of the circumstances. The Commission held that “[ujnder the functional analysis of Penelec, each of the activities listed in [§ 802(i) ] subjects anyone performing that activity to the jurisdiction of the Mine Act....” (App. 18a-19a) (emphases added) (quoting Air Products and Chemicals, Inc. v. Secretary of Labor, MSHA, 15 FMSHRC 2428, 2435, 1993 WL 525480, aff'd, 37 F.3d 1485 (3d Cir.1994) (Table)). The Commission did not ask whether RNS loaded coal on one occasion or on a daily basis, or whether such loading was the type of “work of preparing such coal as is usually done by the operator of the coal mine.” The Commission’s decision was based solely on the fact that RNS loaded coal at the site. Indeed, the Commission noted that RNS’s activities were “de minimis,” App. 19a; one of the five members expressly stated that she concurred “solely because [she was] constrained to [do so] by the opinion” of this court in Penelec (App. 21a); and another member “question[ed] the wisdom of MSHA’s expenditure of scarce government resources to inspect a pile of coal waste that has lain dormant for decades where the only activities are loading and hauling to a power plant for further processing.” (App.l9a)
The Commission’s belief that anyone who performs any listed activity under any circumstances is subject to MSHA jurisdiction becomes even clearer when one examines Air Products, the case that the Commission quoted in articulating its holding in the instant case. See App. 19a. In Air Products, the Commission held that a company was engaged in “the work of preparing coal” because it “perform[ed] some of the coal preparation activities listed in [§ 802(i) ].” 15 FMSHRC at 2431. One member stated that she was constrained to concur by Penelec, which she interpreted to mean that “each of the activities listed in [§ 802(i) ] wherever and by whomever performed and irrespective of the nature of the operation, subjects anyone performing that activity to the jurisdic*189tion of the Mine Act_” Id. at 2435 (emphasis added). A dissenting member would have rejected Penelec, which she viewed as holding that “a coal consumer becomes a coal preparation facility... by engaging in any of the activities listed in [§ 802(i) ].... The Third Circuit’s decision in effect requires MSHA to inspect all facilities performing any of the coal preparation activities listed under [§ 802(i) ].” Id. at 2437-38.
As I explain below, I disagree with the Commission’s inteipretation of Penelec. For present purposes, however, the important point is that the majority disagrees with the Commission’s view of the law as well. Rather than holding, as the Commission did, that the mere performance of any listed activity is sufficient to subject anyone performing it to the Mine Act, the majority interprets the “as is usually done” clause to require that such activity “usually occur[ ]” at the site in question. Maj. Op. at 183-84. In the majority’s view, the “as is usually done” clause “explains that the work of the coal mine is the work that is usually done in that particular place.” Maj. Op. at 185. The majority thus relies on the fact that “at the Site, coal is in fact loaded, at a place regularly used for that purpose_” Maj. Op. at 184 (emphasis added).
Whether or not this is the correct interpretation of the “as is usually done” clause (I believe it is not), it is not the interpretation upon which the Commission relied. As a court reviewing the decision of an administrative agency, we may not uphold the Commission’s decision “on grounds other than those relied upon by the agency.” National Railroad Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 420, 112 S.Ct. 1394, 1403, 118 L.Ed.2d 52 (1992) (citing SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943)). If the Commission reached a result that we believe to be correct, but relied upon an incorrect view of the law in so deciding, we are obligated to remand to allow the Commission to reconsider its decision under the correct legal standard. E.g., Slaughter v. NLRB, 794 F.2d 120, 128 (3d Cir.1986).
Here, in order to escape Chenery, the majority mischaracterizes the Commission’s decision. The majority notes that RNS “asserts that the Commission mistakenly made a per se ruling that whenever loading is present at a site at which coal is handled, that site is a mine.” Maj. Op. at 184. This is, in fact, RNS’s principal argument. The majority then declares that “[w]e do not find that the Commission has made such a per se ruling. Instead, the Commission took note that at the Site, coal is in fact loaded, at a place regularly used for that purpose.... ” Maj. Op. at 184. This is simply wrong: the Commission did not even hint that its decision was based to any extent on the fact that loading regularly occurred at the site.1 As I explained above, the Commission based its decision on the bare fact that RNS performed a listed activity at the site. In finding MSHA jurisdiction, the Commission gave no indication that it believed that anything other than that bare fact was required.
I therefore believe that the majority opinion denies RNS’s petition for a reason not relied upon by the Commission. Because this court lacks the power to do what the majority has done, I would be obligated to dissent even if I agreed with the majority’s view of the law.2
*190II.
In addition to diverging improperly from the Commission’s rationale, the majority’s holding is incorrect on its own terms. As previously noted, the site at issue was a “mine” if RNS was there engaged in “the work of preparing coal,” 30 U.S.C. § 802(h)(1), which is defined to mean:
the breaking, crushing, sizing, cleaning, washing, drying, mixing, storing, and loading of bituminous coal, lignite, or anthracite, and such other work of preparing such coal as is usually done by the operator of the coal mine.
30 U.S.C. § 802(i).
In interpreting this definition, it is important to decide whether the “as is usually done” clause modifies only the phrase that it immediately follows (“such other work of preparing such coal”) or whether it also modifies all of the numerous specific activities (“breaking, crushing, sizing,” etc.) that come before. It seems to me that the most natural reading of the language of this provision is that the “as is usually done” clause modifies only the phrase “such other work of preparing such coal,” but this interpretation would extend MSHA jurisdiction to unreasonable lengths. For example, under this interpretation “storing” coal would always constitute the “work of preparing the coal,” and therefore any site where “storing” occurred (including, presumably, any basement with a coal bin) would be a “mine” subject to MSHA jurisdiction. The MSHA would be required to inspect the basement twice per year (and could do so without a warrant). See 30 U.S.C. §§ 813(a), 814(d); Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981). Such a result would, in my view, be “demonstrably at odds” with congressional intent. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982). Indeed, even the Secretary acknowledges that MSHA jurisdiction does not extend this far. See Sec’y Br. at 12 n. 3 (“to establish coal preparation activity ... every ... activity specifically enumerated in [§ 802(i) ] must be activity ‘such as is usually done by the operator of a coal mine.’ ”). See also id. at 13.
In addition, interpreting the “as is usually done” clause as modifying only the phrase “such other work of preparing the coal” would lead to results that conflict with our prior cases. It is well settled in this circuit and elsewhere that “the delivery of completely processed coal to the ultimate consumer” does not fall within the Act. Penelec, 969 F.2d at 1504 (citing Stroh v. Director, OWCP, 810 F.2d 61, 64 (3d Cir.1987)). Accord United Energy Services, Inc. v. Fed. Mine Safety & Health Adm., 35 F.3d 971, 975 (4th Cir.1994). But this proposition cannot stand if the mere performance of any activity listed in § 802(i) is enough to bring the site within MSHA jurisdiction. As noted, “storing” is among the specific activities listed, and ultimate consumers who receive deliveries of fully processed coal almost always store at least some of that coal before burning it. It is noteworthy that the Secretary appears to recognize the danger of such a conflict. Her brief expressly requests the adoption of a rule of law limiting § 802(i) to activities involving coal that “has not yet reached a form that is completely processed and fully ready for its ultimate use.” Sec’y Br. at 24.
For these reasons, I would hold — contrary to the position that the Commission seems to me to have taken in its decision in this case— that, in order to constitute the work of preparing coal, any activity listed in 30 U.S.C. § 802(i) must be an activity such “as is usually done by the operator of the coal mine.”
It is thus important to determine what the “as is usually done” clause means. The majority here takes the position that the clause *191means simply that the activity in question (“breaking, crushing, sizing,” etc.) must be an activity that is regularly performed at the site. See Maj. Op. at 185 (“The sentence [in 30 U.S.C. § 802(i) ] simply explains that the work of the coal mine is the work that is usually done in that particular place.”).
I strongly disagree with this interpretation, which was not advocated by either party in this ease, and is not supported by any cited judicial or administrative authority. This interpretation again extends MSHA jurisdiction to an unreasonable degree that Congress cannot have intended. According to the majority’s interpretation, any place where any activity listed in 30 U.S.C. § 802(i) regularly occurs must be a coal mine. Therefore, any place where coal is regularly stored must be a coal mine, and consequently the basement with the coal bin must be subjected to MSHA jurisdiction, provided only that such storage is an activity “that is usually done in that particular place.” Maj. Op. at 185.3
RNS offers a more reasonable interpretation of the “as is usually done” clause. RNS contends that “as is usually done by the operator of the coal mine” means as is done by the typical coal mine operator. Thus, under this interpretation, “storing” must be the type of storing that is done by the typical coal mine operator — and not by the homeowner with a basement bin.
The majority rejects this argument based on a punctilious interpretation of word “the” in the phase “operator of the coal mine.” 39 U.S.C. § 802(i) (emphasis added). The majority writes:
It is noteworthy that this sentence does not say, [work] usually done by the operator of a coal mine, as RNS states in its brief. If it did, one might have to compare the activities at the alleged coal mine with those of a typical, paradigmatic, usual coal mine. The sentence as it actually appears in the statute, however, does not help RNS. It simply explains that the work of the coal mine is the work that is usually done in that particular place. The fact that the Site is perhaps an unconventional coal mine does not defeat its status as a coal mine for the purposes of section 802.
Maj. Op. at 185. (emphasis and emendation in original) (citation omitted).
The majority is quick to take RNS to task for changing the statutory “the” into an “a,” but the majority overlooks the fact that RNS has plenty of company. Many cases, including several from this court, have written this clause with an “a” instead of a “the.” See Penelec, 969 F.2d at 1503; Hanna v. Director, OWCP, 860 F.2d 88, 92 (3d Cir.1988); Wisor v. Director, OWCP, 748 F.2d 176, 178 (3d Cir.1984); Fox v. Director, OWCP, 889 F.2d 1037, 1040 (11th Cir.1989); Air Products, 15 FMSHRC at 2431; Penelec, 969 F.2d at 1509 (Mansmann, J., dissenting) (“the preparation at issue must be of a type usually performed by a coal mine operator”) (citing Secretary of Labor v. Pennsylvania Electric Co., 11 FMSHRC 1875, 1880 (1989) and Secretary of Labor v. Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 7 (1982)).4 Moreover, the Secretary’s brief in this case treats § 802(i) as if it read “a” instead of “the”. See Sec’y Br. at 12 n. 3 (“Both the Secretary and the Commission acknowledge that to establish coal preparation activity, loading, like every other activity specifically enumerated in [§ 802(i) ] must be activity ‘such as is usually done by the operator of a coal mine.’ ”); id. at 13.5 In addition, the Commission in Air *192Products wrote this provision as “as is usually done by the operator of [a] coal mine.” 15 FMSHRC at 2430-31 (emendation in original). All of these authorities, it seems to me, support RNS’s interpretation. All of them appear tacitly to acknowledge that, although Congress used the word “the,” its intended meaning would have been more clearly expressed had it used the word “a.” While this interpretation may not be the most literal reading of the statutory language, it seems to me to represent the best we can do with the unfortunately worded provision that confronts us.
Whether RNS’s activities in loading the coal and transporting it to Cambria are the type of work usually done by a coal mine operator is a factual question that the Commission has not addressed. I would therefore grant RNS’s petition for review and remand to allow the Commission to decide this question.
III.
As explained in Part I, the Commission appears to have believed that it was compelled by Penelec to hold as it did. I do not think that its view was warranted, and I believe my analysis to be consistent with the terse discussion of the relevant question in the majority opinion in that case. In Penelec, the court held that “the delivery of coal from a mine to a processing station via a conveyor constitutes coal preparation ‘usually done by the operator of a coal mine.’ ” 969 F.2d at 1503. Thus, contrary to the Commission’s apparent perception, the Penelec court did utilize the “as is usually done” language in its holding. Indeed, it quoted the clause as including “a” instead of “the”. Moreover, the Penelec court was not presented with the question whether the statute reaches anyone who performs any listed activity under any circumstances. Rather, the head drives at issue in Penelec moved raw coal to a processing plant where it underwent precisely the type of treatment that would constitute coal preparation in the ordinary sense of the term. Penelec is thus wholly consistent with the view of the “as is usually done” clause as limiting the definition of coal preparation to those activities usually done by the operator of a coal mine as that term is generally understood. In addition, the Penelec court expressly reaffirmed the prior statement in Stroh that “the delivery of completely processed coal to the ultimate consumer” falls outside the statute. Id. at 1504. As I have shown, the Commission’s reading of Penelec is inconsistent with that proposition.
IV.
Accordingly, I would hold that the Commission made an error of law in holding that any person who performs any activity listed in § 802(i) under any circumstances is subject to the Mine Act. I would hold, in contrast, that the definition of the “work of preparing the coal” embraces the performance of activities, whether or not listed in § 802(i), only if they are the type of work usually done by a coal mine operator, as that term is commonly understood. I would grant RNS’s petition for review and remand to permit the Commission to reevaluate this case under that legal standard. Even if I am wrong and the correct legal standard is, as the majority holds, that any person who performs any listed activity under any circumstances is subject to the Mine Act, so long as he performs such activity on a regular basis, I believe it is perfectly clear that the Commission did not base its decision on that standard. Therefore, even if the majority’s view of the law is correct, the proper disposition is a remand under Chenery.6
. The majority points out (Maj. Op. at 184-85 n. 1) that the Commission noted that RNS had entered into a "long-term contract.” It is plainly unreasonable to read this passing reference to mean that the Commission's decision rested on the fact that loading occurred regularly at the site.
. This is not a case in which the Commission came to “a conclusion to which it was bound to come as a matter of law, albeit for the wrong reason.” See e.g., United Video, Inc. v. Federal Communications Commission, 890 F.2d 1173, 1190 (D.C.Cir.1989). In order to uphold MSHA jurisdiction under the majority's interpretation, a determination must be made that loading is "usually” done at the site in question. It may well be that loading occurred at the site with some frequency from May 1995 through June 16, 1995, when the challenged citations were issued, but I cannot say based on the record that the Commission was bound to come to the conclusion that loading was an activity "usually” done at the site. We do not know for sure what occurred between May 1995 and June 16, 1995; nor is it clear that the Commission would be bound to limit its consideration to this brief period. That the agency would most likely reach the same decision on remand is no reason not to *190follow Chenery and its progeny. As we explained in Slaughter:
Where the agency has rested its decision on an unsustainable reason, the court should generally reverse and remand even though it discerns a possibility, even a strong one, that by another course of reasoning the agency might come to the same result.... |T|he process, even though it may appear wasteful as regards the case at hand, is important for the proper execution of the legislative will, since proceeding on the right path may require or at least permit the agency to make qualifications and exceptions that the wrong one would not.
794 F.2d at 128 (quoting Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 197, 222-23).
. The majority states that a basement coal bin is not subject to MSHA jurisdiction because “the MSHA has jurisdiction only over locations in which, inter alia, coal undergoes processing that prepares the coal for its ultimate use.” Maj. Op. at 186 n. 2. But how the majority can square this rule with its interpretation of the "as is usually done" clause is a mystery.
. In Oliver M. Elam, one of the cases cited by Judge Mansmann in her Penelec dissent, the Commission opined that "inherent in the determination of whether an operation properly is classified as 'mining' is an inquiry not only into whether the operation performs one or more of the listed work activities, but also into the nature of the operation performing such activities.” 4 FMSHRC at 7.
.While the Secretary's brief does not say so in so many words, her unacknowledged changing of the "the” to "a" is consistent with, indeed required by, her recognition that the Act does not extend to activities involving coal that is "completely processed and fully ready for its ultimate use.” Sec’y Br. at 24.
. In addition to my disagreements with the majority discussed in the text, I also note that the majority fails to explain or support its suggestions that the site might come within the statute as a "custom coal preparation facilit[y],” Maj. Op. at 186, or a "land[ ] ... resulting £rom[ ] the work of extracting such minerals from their natural deposits_” Maj. Op. at 186 (quoting 30 U.S.C. § 802(h)(1)).