D.H. Blattner & Sons, Inc. v. Secretary of Labor, Mine Safety and Health Admin., 96-70877

• Decision Date: 10 August 1998
• Docket Number: No. 96-70877,96-70877
• Citation: 152 F.3d 1102
• Parties: 1998 O.S.H.D. (CCH) P 31,624, 98 Cal. Daily Op. Serv. 6244, 98 Daily Journal D.A.R. 8649 D.H. BLATTNER & SONS, INC., Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, and Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1102

152 F.3d 1102

1998 O.S.H.D. (CCH) P 31,624, 98 Cal. Daily

Op. Serv. 6244,

98 Daily Journal D.A.R. 8649

D.H. BLATTNER & SONS, INC., Petitioner, v. SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION and Federal Mine Safety and Health Review Commission, Respondents.

No. 96-70877.

United States Court of Appeals Ninth Circuit.

Argued April 7, 1998.

Decided Aug. 10, 1998.

Jeffrey M. Hindoien, Gough, Shanahan, Johnson & Waterman, Helena, Montana, for petitioner.

Robin A. Rosenbluth, United States Department of Labor, Arlington, Virginia, for respondents.

Petition for Review of a Decision of the Federal Mine Safety and Health Review Commission.

Before: HUG, Chief Judge, REINHARDT, Circuit Judge, and REED, ^* District Judge.

REINHARDT, Circuit Judge:

This petition presents the question whether, under the Mine Safety and Health Act of 1977 and its implementing regulations, independent contractors who operate, control, or supervise a mine are mine "operators" who must file "legal identity reports" with the Mine Safety and Health Administration. We hold that the Secretary of Labor's position that such independent contractors must file the reports is neither unreasonable nor in violation of the Administrative Procedure Act. We also uphold the Secretary's determination that Petitioner D.H. Blattner & Sons is subject to the applicable regulation. Accordingly, we deny its petition for review.

I. BACKGROUND

Section 103(h) of the Federal Mine Safety and Health Act of 1977 ("Mine Act"), Pub.L. No. 95-164, 91 Stat. 1290 (1977), provides that "every operator of a coal or other mine shall ... make such reports, and provide such information, as the Secretary ... may reasonably require from time to time to enable [her] to perform [her] functions under this Act." 30 U.S.C. § 813(h). To this end, the Act's implementing regulations require every mine "operator" to file a two-page document called a "legal identity report." 30 C.F.R. § 41.20. Such reports provide the Mine Health and Safety Administration (MSHA) with information necessary to monitor the work and safety conditions at mines, to conduct inspections, and to contact appropriate parties in the case of safety emergencies at the mines.

In 1992 and 1993, MSHA officials issued to D.H. Blattner & Sons, Inc. ("Blattner"), a heavy construction company and an independent contractor, three citations for failure to file legal identity reports at three separate mining operations. Blattner challenges each citation in this petition.

The first citation occurred at the Yankee Project Mine, an open pit, heap leach gold mine owned by USMX, Inc. Blattner contracted with USMX to perform services in the pit, including drilling, blasting, loading, hauling and dumping ore and waste material. While USMX was in charge of the overall enterprise and provided all the planning and engineering for the project, Blattner did all of the actual mining and extraction of the ore. USMX simply crushed and leached the mineral once it was extracted. Blattner was also responsible for the daily supervision of its operation in the pit, including the safety of its equipment and employees and those of its subcontractor, and instructed them in safety procedures on that site. Based on these facts, a MSHA inspector determined that Blattner was required to submit a legal identity report. When Blattner refused to comply, MSHA issued it a citation for failure to file the report. Under protest, Blattner completed a legal identity report and the citation was terminated.

The second citation occurred at Van Stone Mine, an open pit lead and zinc mine owned by Equinox Resources, Inc. ("Equinox"). Blattner contracted with Equinox to blast, load and haul ore and waste materials. Equinox had overall control and direction over the mine operation. Blattner, however, was the entity that actually conducted the mining in the pit. Equinox made sure that Blattner conducted safety meetings and was responsible for safety on the property, but left Blattner in charge of monitoring health and safety conditions in the mining operations in the pit. Upon investigation, MSHA concluded that both Equinox and Blattner were mine "operators"--Equinox because it owned the mine and operated the mill, and Blattner because it was doing the mining in the pit. Once again, therefore, MSHA informed Blattner that it was required to file a legal identity report because it was responsible for safety in the pit. When Blattner refused, MSHA issued it a citation.

The third citation occurred at the Aurora Partnership Mine, an open pit, heap leach gold and silver mine owned by the Aurora Partnership ("Aurora"). Blattner contracted with Aurora to provide services in the pit, including drilling, blasting, crushing, loading and hauling ore and non-ore material, and preparing and maintaining haul roads and pit walls. Aurora periodically conducted safety audits on Blattner to ensure that its operation was safe and that it met Aurora's safety criteria. The day-to-day safety supervision, however, was once again conducted by Blattner. In June 1993, the MSHA asked Blattner to fill out a report and assume Aurora's prior contractor's legal identity number. When Blattner failed to file a report by September, 1993, MSHA issued a citation to Blattner, which under protest completed a legal identity report and assumed the former contractor's identity number.

The three proceedings were consolidated for administrative review. The sole issue before the Administrative Law Judge (ALJ) was whether Blattner was an "operator" of the mines and thus required to file a legal identity report under 30 C.F.R. § 41.20. After an evidentiary hearing, the ALJ held that Blattner was indeed an "operator" under § 41.20 because it "exercised direct supervision and control over the ore extraction process and the health and safety of the miners so involved" at the three mines. The ALJ further reasoned that since Blattner was "a production operator ... directly responsible for the safety and health of the miners working under its control, requiring Blattner to comply with § 41.20, directly promotes the safety goals of the Act." The ALJ, therefore, upheld each of the Secretary of Labor's $50 citations and dismissed Blattner's claim. The Federal Mine Safety and Health Review Commission affirmed the ALJ's decision. Blattner timely petitions for review of the Commission's final order.

II. ANALYSIS

Blattner argues that the Secretary's insistence that it file legal identity reports contravenes both the Mine Act's regulations and the rulemaking requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 553. We consider each contention in turn.

A. The Mine Act's Regulations

Blattner contends that the Commission plainly erred in holding that it was an "operator" for purposes of the Mine Act's regulatory requirement of filing legal identity reports. See 30 C.F.R. § 41.20. It makes two arguments in support of this position. First, Blattner argues that it cannot be an "operator" subject to the legal identity reporting requirement because it is not covered by the terms of § 41.20 and because independent contractors are covered exclusively by a different reporting requirement. Second, Blattner argues that even if independent contractors may constitute "operators"--and thereby be subject to filing legal identity reports--it was not an operator of the mines because it did not own the mines or have ultimate control over the mining operations. While we sympathize with Blattner's first argument, we must reject it on the ground that the Secretary's interpretation of the regulations is not unreasonable. We find little merit in its second argument.

1. Independent Contractors' Reporting Requirements

We will defer to an agency's interpretation of its regulations "so long as it is 'reasonable,' that is, so long as the interpretation sensibly conforms to the purpose and wording of the regulations." Martin v. OSHRC, 499 U.S. 144, 150-51, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (internal quotation marks and citations omitted); accord RLC Indus. Co. v. Commissioner, 58 F.3d 413, 415 (9th Cir.1995). We also are bound to interpret statutes and regulations that are intended to protect health and safety in a broad manner so that these goals will be actually achieved. See Secretary of Labor v. Cannelton Indus., 867 F.2d 1432, 1437 (D.C.Cir.1989); Magma Copper Co. v. Secretary of Labor, 645 F.2d 694, 697 (9th Cir.1981). The Department of Labor's actions in this case push each of these principles of interpretation and deference to its outer limits.

The legal question before us is the result of Congress's amendment of the definition of "operator" and the Department of Labor's exceptionally inept job of drafting regulations to implement that amendment. The Federal Coal Mine Health and Safety Act of 1969 ("Coal Act"), Pub.L. No. 91-173, 83 Stat. 742 (1969), provided that a mine "operator" was "any owner, lessee or other person who operates, controls, or supervises a coal mine." 30 U.S.C. § 802(d) (1976). In the late 1970's, two circuit courts held that independent contractors that operated, controlled or supervised mines qualified as "other persons" who were mine operators. See Association of Bituminous Contractors, Inc. v. Andrus, 581 F.2d 853, 861 (D.C.Cir.1978) (holding that "it makes no difference that [independent contractors] are not owners or lessees[;] the fact of their control or supervision over the designated areas or facilities ... makes them 'operators' "); Bituminous Coal Operators' Ass'n v. Secretary of Interior, 547 F.2d 240, 246 (4th Cir.1977) (same).

In 1977, Congress passed the Mine Act in order to amend and replace the Coal Act. In so doing, it amended the Coal Act's definition of "operator" to codify the Bituminous Contractors and Bituminous Coal holdings, see Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116, 1119 (9th Cir.1981); Brock v. Cathedral Bluffs Shale Oil Co., 796...