Brock v. Cathedral Bluffs Shale Oil Co.

Decision Date29 July 1986
Docket NumberNo. 84-1492,84-1492
Citation796 F.2d 533
Parties, 55 USLW 2088, 1986-1987 O.S.H.D. ( 27,646 William E. BROCK, Secretary of Labor, Petitioner, v. CATHEDRAL BLUFFS SHALE OIL CO., et al., Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

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.

I

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 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 performing work at a mine, and would thereafter generally be held solely responsible for violations of Mine Act regulations. See Independent Contractors: Advanced Notice of Proposed Rulemaking, 43 Fed.Reg. 50,716 (1978); Independent Contractors: Proposed Rule, 44 Fed.Reg. 47,746 (1979). This proposal did not survive, however, "in large part" as a result of the (presumably hostile) comments and testimony received about it. Independent Contractors: Final Rule, 45 Fed.Reg. 44,494 (1980). The final rule merely required independent contractors to provide certain information to production-operators before commencing mine work and instituted a voluntary procedure whereby independent contractors could apply for Mine Safety and Health Administration ("MSHA") identification numbers. See 30 C.F.R. Secs. 45.1-45.6 (1985). The statement of basis and purpose accompanying the final rule specified that under the Act all independent contractors were responsible for complying with safety standards, and that in cases involving independent contractor violations, all production-operators remained ultimately responsible and would be cited "in appropriate circumstances." 45 Fed.Reg. at 44,494. As to what those circumstances might be, the statement of basis and purpose stated that "the final rule does not address the circumstances under which production-operators should be held jointly or severally liable for violations involving independent contractors," but that an "appendix" to the final rule, entitled "Enforcement Policy and Guidelines for Independent Contractors," would "be used by inspectors as guidance in making individual enforcement decisions." Id. at 44,494, 44,495. The appendix--which, unlike the final rule, is not published in the Code of Federal Regulations--states in relevant part:

Th[e] "overlapping" compliance responsibility of independent contractors and production-operators means that there may be circumstances in which it is appropriate to issue citations or orders to both the independent contractor and the production-operator for a violation. Enforcement action against production-operators for violations involving independent contractors is ordinarily appropriate in those situations where the production-operator has contributed to the existence of a violation, or the production-operator's miners are exposed to the hazard, or the production-operator has control over the existence of the hazard. Accordingly, as a general rule, a production-operator may be properly cited for a violation involving an independent contractor: (1) when the production-operator has contributed by either an act or an omission to the occurrence of a violation in the course of an independent contractor's work, or (2) when the production-operator has contributed by either an act or omission to the continued existence of a violation committed by an independent contractor, or (3) when the production-operator's miners are exposed to the hazard, or (4) when the production-operator has control over the condition that needs abatement.

45 Fed.Reg. at 44,497.

II

In 1978, Occidental hired the Gilbert Corporation of Delaware, Inc. ("Gilbert"), to construct three vertical underground shafts at the Cathedral Bluffs mine site in Colorado. On September 4, 1980, a MSHA inspector examined one of the shafts then under construction, which had been sunk to approximately 1125 feet, with horizontal landings cut at predetermined points along the shaft wall. At the last landing, cut at a point 1050 feet below the surface of the mine, no "substantial safety gate" had been constructed, in violation of a mine safety standard. See 30 C.F.R. Sec. 57.19100 (1985). Instead, a chain had been hung across the landing--obviously insufficient protection against the risk of materials' being knocked off the landing and striking miners at the shaft's bottom, 75 feet below.

Both Occidental and Gilbert were cited for the violation. Gilbert did not contest its citation, but Occidental, soon after being notified of the Secretary's proposed assessment of a $90 fine, did so. On April 1, 1981, the Secretary filed with the Commission a Petition for Assessment of Civil Penalty; several months later a hearing took place before a Commission ALJ who, on May 12, 1982, issued a decision dismissing the citation. Secretary of Labor v. Cathedral Bluffs Shale Oil Co., 4 F.M.S.H.R.C. 902 (May 12, 1982). The Commission granted the Secretary's petition for discretionary review, and on August 29, 1984, affirmed the dismissal. Secretary of Labor v. Cathedral Bluffs Shale Oil Co., 6 F.M.S.H.R.C. 1871 (Aug....

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