
    International Salt Company, n.k.a Akzo Salt, Inc., Appellant, v. Tracy, Tax Commr., Appellee.
    [Cite as Internatl. Salt Co. v. Tracy (1996), 74 Ohio St.3d 550.]
    (No. 94-2572
    Submitted September 28, 1995
    Decided February 21, 1996.)
    
      
      Fred Siegel Co., L.P.A, and Annrita S. Johnson, for appellant.
    
      Betty D. Montgomery, Attorney General, and Thelma Thomas Price, Assistant Attorney General, for appellee.
   Per Curiam.

While the tax at issue is a use tax, R.C. 5741.02(C)(2) exempts from the use tax acquisitions “which if made in Ohio would be a sale not subject to the tax imposed by sections 5739.01 to 5739.31 of the Revised Code.” We will discuss only the applicability of the sales tax exemptions. International Salt contends the waste conveyor system and the Wagner trucks should be exempted under R.C. 5739.01(E)(2) as used directly in mining or, in the alternative, as used in refining.

Former R.C. 5739.01(E)(2) provided in pertinent part:

“ ‘Retail sale’ and ‘sales at retail’ include all sales except those in which the purpose of the consumer is:

a * * *

“(2) To incorporate the thing transferred as a material or a part, into tangible personal property to be produced for sale by * * * refining, or to use or consume the thing transferred directly in the production of tangible personal property, * * * for sale by * * * refining, or mining, including without limitation the extraction from the earth of all substances which are classed geologically as minerals * •* *.” (141 Ohio Laws, Part II, 3281.)

The first paragraph of the syllabus of Dye Coal Co. v. Evatt (1944), 144 Ohio St. 233, 29 O.O. 397, 58 N.E.2d 653, adopted the following definition of the word “mine”:

“ ‘[A]n underground or surface excavation or development, with or without shafts, * * * for the extraction of coal, gypsum, asphalt, rock or other materials, * * * and shall embrace any and all of the land or property of the mining plant, and the surface and underground, that is used or contributes directly * * * to the mining properties, concentration or handling of coal * * * or other materials containing the same.’ ” Id. at paragraph one of the syllabus. We went on to further state that the term “mining” “cannot properly be restricted to mere severance of the raw material from the earth, but includes such movement and handling thereof on the surface as in this instance is essential for the production of coal.” Id. at 236, 29 O.O. at 398, 58 N.E.2d at 655. In Dye, we held that trucks used to haul coal from the pits to the tipple, where the coal was cleaned and graded, were used directly in mining.

The question in this case is whether the equipment in question is used “directly” in mining. In Fyr-Fyter Co. v. Glander (1948), 150 Ohio St. 118, 37 O.O. 432, 80 N.E.2d 776, we pointed out that the predecessor of R.C. 5739.01(E)(2) did not contain the concept that the thing transferred must be used “directly in the production of tangible personal property for sale by * * * refining, * * * mining * * In Fyr-Fyter we stated that we believed the legislative intent of inserting the word “directly” was to “narrow the field” from an exception “involving property used or consumed in certain industries, to one involving property used or consumed in a certain manner by those industries.” Id. at 122, 37 O.O. at 433, 80 N.E.2d at 779.

In Powhatan Mining Co. v. Peck (1953), 160 Ohio St. 389, 52 O.O. 246, 116 N.E.2d 426, the question was whether specifically designed trucks used to haul gob from a coal-cleaning plant were used directly in mining. We noted that if the question of direct use were allowed to depend upon the facts and circumstances of each case, without reference to decisions rendered in other cases, this court would merely be contributing to the confusion caused by the ambiguous statutory word “directly.” Id. at 394, 52 O.O. at 248, 116 N.E.2d at 428. In Powhatan, we relied upon the holding of Tri-State Asphalt v. Glander (1950), 152 Ohio St. 497, 504-505, 41 O.O. 40, 43, 90 N.E.2d 366, 369-370, for the concept that where the principal use of property is transportation to or from an activity, as distinguished from transportation which is part of that activity or between essential steps of that activity, such use is not directly in such activity. Based on that concept, we held that the trucks in Powhatan which removed the gob (or waste) from the processing plant were not used directly in mining or processing.

In Consolidation Coal Co. v. Bowers (1963), 174 Ohio St. 228, 22 O.O.2d 222, 188 N.E.2d 419, we held that car retarders, which are pieces of equipment that are hooked to a coal car as it approaches a tipple for loading processed coal, were not exempted. ' The car retarders were not exempted because they were used after the coal was mined and processed. In a more recent decision, Consolidation Coal Co. v. Kosydar (1975), 42 Ohio St.2d 189, 71 O.O.2d 180, 326 N.E.2d 864, we held that equipment used for the maintenance and repair of haul roads was not exempted. We recognized that while road maintenance may be essential, the equipment did not come within the terms of TX-15-09 (now Ohio Adm.Code 5703-9-22). Ohio Adm.Code 5703-9-22(0 exempted the aggregate gravel and other materials which will be incorporated into certain haulways. However, Ohio Adm.Code 5703-9-22 did not exempt the machinery used to haul or spread the aggregate gravel.

Based on these authorities, we determine the waste conveyor system and the Wagner trucks are not used directly in mining. The waste conveyor essentially serves the same purpose as that of the trucks in Powhatan by removing waste product after the processing of salable product has ended. Likewise, the Wagner trucks are also like the trucks in Powhatan, in that the Wagner trucks are merely a continuation of a transportation system for removing waste.

International Salt contends that if the waste were not removed, it would pile up and the mine would have to shut down. A similar argument was rejected by this court in Crowell-Collier Publishing Co. v. Glander (1951), 155 Ohio St. 511, 44 O.O. 460, 99 N.E.2d 649, wherein the taxpayer publishing company contended that a conveyor system which carried completed magazines to be loaded into, transportation vehicles was part of a continuous manufacturing process. In Powhatan it was alleged that the cleaning plant would shut down in ten minutes if the gob were not removed. We denied the exemption, stating that “[t]he necessity of removing by-product in order to continue the production by * * * mining * * * was no greater than the necessity of removing the useful product in the Crowell Publishing Co. case in order to continue the production * *." Id. at 395, 52 O.O. at 248, 116 N.E.2d at 429.

Appellant’s second contention is that the equipment at issue was used in a refining process. During the audit period, the word “refining” was not defined in the sales tax statutes. Effective July 1,1990, “refining” has been defined by R.C. 5739.01(Q) to mean “removing or separating a desirable product from raw or contaminated materials by distillation or physical, mechanical, or chemical processes.” (143 Ohio Laws, Part IV, 5576.) Even this definition of “refining” does not include transportation of the waste products after the refining has ended.

In support of its contention, International Salt relies upon a BTA decision, Ashland, Oil, Inc. v. Limbach (June 29, 1990), BTA case No. 88-B-701. In Ashland, the BTA granted an exemption for an exhaust stack which was part of a fume incineration system. Fumes from an asphalt refining process were returned to be burned as process fuel. In the instant case, the refining of the salt ends before the rock reject and fines are placed on the waste conveyor or into the Wagner trucks. Before it can be argued that Ashland is a persuasive analogy, the waste conveyor and the Wagner trucks would have to be used to return the waste materials to the refining process. Those are not the facts in this case. We find the Ashland case not applicable.

Accordingly, we affirm as reasonable and lawful the BTA’s decision denying exemption for the waste conveyor and the Wagner trucks.

Decision affirmed.

Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney and Cook, JJ., concur.

Pfeifer, J., dissents.

Pfeifer, J.,

dissenting. Because I have a broader view of manufacturing than the majority does, I respectftdly dissent.  