Cyprus Indus. Minerals Co. v. Federal Mine Safety and Health Review Commission

• Decision Date: 28 December 1981
• Docket Number: No. 81-7062,81-7062
• Citation: 664 F.2d 1116
• Parties: CYPRUS INDUSTRIAL MINERALS COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, and Raymond J. Donovan, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1116

664 F.2d 1116

CYPRUS INDUSTRIAL MINERALS COMPANY, Petitioner, v. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, and Raymond J. Donovan, Secretary of Labor, Respondents.

No. 81-7062.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 3, 1981.

Decided Dec. 28, 1981.

Scott H. Dunham, O'Melveny & Myers, Los Angeles, Cal., for petitioner.

Ann S. Rosenthal, Washington, D. C., for respondents.

Appeal from the Decision and Order of the Federal Mine Safety and Health Review Commission.

Before GOODWIN and FLETCHER, Circuit Judges, and PANNER, ^* District Judge.

GOODWIN, Circuit Judge.

After a fatal accident, a Federal Mine Safety and Health inspector cited Cyprus for a violation of 30 C.F.R. § 57.3-22 (1980) and issued a withdrawal order. An unsuccessful review petition before the Mine Safety and Health Administration led Cyprus to petition this court for review. Cyprus contends: (1) that the operation where the accident occurred was not a mine within the meaning of the Federal Mine Safety and Health Act, 30 U.S.C. § 802(h)(1) (Supp. III 1979); and (2) that the employment of an independent contractor to perform the operation effectively insulated Cyprus from liability under the Act. Neither point is well taken, and the petition is denied.

Cyprus grounds its contention substantially on the assertion that the accident site was not a mine because the work under way consisted of driving exploratory drifts in search of a commercially exploitable deposit of talc rather than in the extraction of minerals.

The broad language of the statute and the legislative history do not support Cyprus' interpretation of the definition of a mine under the Act. The relevant Senate Report stated:

"Thus, for example, the definition of 'mine' is clarified to include the areas, both underground and on the surface, from which minerals are extracted (except minerals extracted in liquid form underground), and also, all private roads and areas appurtenant thereto. Also included in the definition of 'mine' are lands, excavations, shafts, slopes, and other property, including impoundments, retention dams, and tailings ponds. These latter were not specifically enumerated in the definition of mine under the Coal Act. It has always been the Committee's express intention that these facilities be included in the definition of mine and subject to regulation under the Act, and the Committee here expressly enumerates these facilities within the definition of mine in order to clarify its intent. The collapse of an unstable dam at Buffalo Creek, West Virginia, in February of 1972 resulted in a large number of deaths, and untold hardship to downstream residents, and the Committee is greatly concerned that at that time, the scope of the authority of the Bureau of Mines to regulate such structures under the Coal Act was questioned. Finally, the structures on the surface or underground, which are used or are to be used in or resulting from the preparation of the extracted minerals are included in the definition of 'mine'. The Committee notes that there may be a need to resolve jurisdictional conflicts, but it is the Committee's intention that what is considered to be a mine and to be regulated under this Act be given the broadest possibly (sic) interpretation, and it is the intent of this Committee that doubts be resolved in favor of inclusion of a facility within the coverage of the Act." S.Rep. No. 95-181, 95th Cong., 1st Sess. 1, reprinted in (1977) U.S.Code Cong. & Ad.News 3401, 3414 (emphasis added).

Cases in this and other circuits interpreting Section 3(h)(1) have interpreted the definition of mine very broadly. Marshall v. Wait, 628 F.2d 1255, 1258 (9th Cir. 1980) (backyard rock quarry is within the definition of a mine); Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589, 592 (3rd Cir. 1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980) (sand and gravel preparation plant is a "mine" within the meaning of the Act).

As Stoudt's Ferry, 602 F.2d at 592, indicates, it does not matter if what is included in the definition fails to conform to the conventional concept of mining:

"Although it may seem incongruous to apply the label 'mine' to the kind of plant operated by Stoudt's Ferry, the statute makes clear that the concept that was to be conveyed by the word is much more encompassing than the usual meaning attributed to it-the word means what the statute says it means." (Footnote omitted.)

As the Secretary has argued, remedial statutes are construed broadly to "best effectuate" the Congressional purpose. Whirlpool Corp. v. Marshall, 445 U.S. 1, 13, 100 S.Ct. 883, 891, 63 L.Ed.2d 154 (1980); Magma Copper Co. v. Secretary of Labor, 645 F.2d 694, 697 (9th Cir. 1981).

The activity at Cyprus' Bosal No. 1 Claim could hardly be described as anything but mining. The contractor dug a tunnel into a hill to assess the value of the talc deposits. This activity would ordinarily be called mining even under more conventional definitions.

Cyprus next argues that even if Bosal No. 1 was a mine and conditions at the site constituted an imminent danger, the withdrawal order is invalid because the Mine Safety and Health Administration cited the wrong party. Cyprus says the inspector should have cited Holmes, the independent contractor, rather than Cyprus, the owner of Bosal No. 1, because Holmes had complete control over the work done at the site.

Cyprus makes two general arguments to support this contention: (1) the express terms of the Act and the legislative history support citing only the independent contract when the contractor is in control of the work; and (2) the Secretary's interim policy of citing only owner-operators is contrary to the purposes of the Act and therefore constitutes an abuse of discretion.

(1) Prior to the enactment of the Act, there was some question whether the Secretary could cite independent contractors for violations of mine health and safety regulations under the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. The Fourth Circuit held that the Secretary could cite independent contractors even though the Coal Act did not include independent contractors in the definition of "operator." Bituminous Coal Oper. Ass'n v. Sec'y of Interior, 547 F.2d 240, 246 (4th Cir. 1977), accord, Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 862 (D.C.Cir.1978).

Section 3(d) of the Act, 30 U.S.C. § 802(d) (Supp. III 1979), specifically adds "independent contractor" to the definition of "operator:"

"(d) '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."

Cyprus, citing S.Rep. No. 95-181, 95th Cong., 1st Sess. 1, reprinted in (1977) U.S.Code Cong. & Admin.News 3401, 3414, argues that independent contractors were added to the definition of "operator" in the Act to insure that the party controlling the work would be held solely responsible for health and safety violations.

"Similarly, the definition of mine 'operator' is expanded to include 'any independent contractor performing services of construction at such mine.' It is the Committee's intent to...