796 F.2d 533 (D.C. Cir. 1986), 84-1492, Brock v. Cathedral Bluffs Shale Oil Co.

Docket Nº:84-1492.
Citation:796 F.2d 533
Party Name:1986-1987 O.S.H.D. ( 27,646 William E. BROCK, Secretary of Labor, Petitioner, v. CATHEDRAL BLUFFS SHALE OIL CO., et al., Respondents.
Case Date:July 29, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 533

796 F.2d 533 (D.C. Cir. 1986)

1986-1987 O.S.H.D. ( 27,646

William E. BROCK, Secretary of Labor, Petitioner,


CATHEDRAL BLUFFS SHALE OIL CO., et al., Respondents.

No. 84-1492.

United States Court of Appeals, District of Columbia Circuit

July 29, 1986

Argued Sept. 13, 1985.

Page 534

Barry F. Wisor, Atty., Dept. of Labor, with whom Cynthia L. Attwood, Associate Solicitor, and Michael A. McCord, Counsel, Dept. of Labor, Washington, D.C., were on brief, for petitioner.

Charles Wayne Newcom, Denver, Colo., for respondent Cathedral Bluffs Shale Oil Co. James M. Day, Washington, D.C., was on brief, for respondent Cathedral Bluffs Shale Oil Co.

L. Joseph Ferrara, Washington, D.C., entered an appearance for respondent Federal Mine Safety and Health Review Com'n.

Before BORK and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

Occidental Oil Shale, Inc. ("Occidental"), the co-owner and operating partner of the Cathedral Bluffs shale oil project, was issued a citation by the Secretary of Labor for a safety standard violation committed by an independent contractor working at its mine. 1 In challenging the citation, Occidental did not dispute that under the governing statute it could have been cited for independent contractor violations, but argued that the citation was impermissible under the "Enforcement Policy and Guidelines for Independent Contractors" published by the Secretary of Labor in the Federal Register. On review the Federal Mine Safety and Health Review Commission agreed that the record did not "reflect [ ] proper application of the Secretary's new independent contractor enforcement policy" and dismissed the citation. Secretary of Labor v. Cathedral Bluffs Shale Oil Co., 6 F.M.S.H.R.C. 1871, 1873 (Aug. 29, 1984). The principal question presented by the Secretary's petition for review is whether the published enforcement policy was legally binding.


Under the Federal Mine Safety and Health Act of 1977 ("Mine Act" ), 30 U.S.C. Secs. 801-960 (1982), the Secretary of Labor has responsibility for promulgating "mandatory health or safety standards for the protection of life and prevention of injuries in ... mines," 30 U.S.C. Sec. 811(a), and for assuring compliance with those standards, 30 U.S.C. Sec. 813(a). If, upon inspection of a mine, the Secretary identifies a violation of the Act or of a health or safety standard promulgated under it, he is required, "with reasonable promptness, [to] issue a citation to the operator," 30 U.S.C. Sec. 814(a), and "within a reasonable time ... [to] notify the operator ... of the civil penalty proposed to be assessed," 30 U.S.C. Sec. 815(a). If the operator contests the citation or penalty, a hearing is held before an administrative law judge ("ALJ") of the Federal Mine Safety and Health Review Commission, whose decision may be reviewed by the

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Commission at its discretion. 30 U.S.C. Sec. 823(d). Judicial review of Commission orders is available in this court. 30 U.S.C. Sec. 816.

The Mine Act declares that "the operators" of the nation's mines have primary responsibility for preventing the existence of unsafe and unhealthful conditions, 30 U.S.C. Sec. 801(e), and throughout the Act the entity charged with compliance is referred to simply as the "operator." See, e.g., 30 U.S.C. Secs. 814(a), 815(a), 820(a) & (i). Under the legislation that preceded the Mine Act, the Federal Coal Mine Health and Safety Act of 1969, Pub.L. No. 91-173, 83 Stat. 742 (codified at 30 U.S.C. Secs. 801-960 (1976)), "operator" was defined as "any owner, lessee or other person who operates, controls, or supervises a coal mine," 30 U.S.C. Sec. 802(d) (1976). In Bituminous Coal Operators' Ass'n v. Secretary of Interior, 547 F.2d 240, 246-47 (4th Cir.1977) ("BCOA " ), the court interpreted that definition of "operator" to include independent contractors performing services at the production-operator's mine, and held that the Secretary had the power to cite the independent contractor, the operator, or both for independent contractor violations. Accord Republic Steel Corp. v. Interior Bd. of Mine Operations Appeals, 581 F.2d 868, 870 & n. 5 (D.C.Cir.1978); Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 861-63 (D.C.Cir.1978).

In enacting the Mine Act, Congress amended the definition of "operator" by adding the italicized phrases:

"operator" means any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine[.]

30 U.S.C. Sec. 802(d). The Senate Report accompanying the bill that became the Mine Act stated that the purpose of this amendment was to give statutory expression to the doctrine of BCOA, see S.Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), U.S.Code Cong. & Admin.News 1977, pp. 3401, 3414; and the Act was so construed in Cyprus Industrial Minerals Co. v. FMSHRC, 664 F.2d 1116 (9th Cir.1981).

Shortly after enactment of the Mine Act, the Secretary initiated a rulemaking proceeding designed to specify, for the benefit of operators and independent contractors, how he would exercise his enforcement discretion. He proposed a scheme whereby, on a job-by-job basis, certain independent contractors would be identified as "operators" before...

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