Kaiser Aluminum v. US Dept. of Labor

• Decision Date: 05 July 1999
• Citation: 214 F.3d 586
• Parties: (5th Cir. 2000) IN RE: KAISER ALUMINUM AND CHEMICAL COMPANY,
• Court: U.S. Court of Appeals — Fifth Circuit

Page 586

214 F.3d 586 (5th Cir. 2000)

IN RE: KAISER ALUMINUM AND CHEMICAL COMPANY, JULY 5, 1999 EXPLOSION AT KAISER ALUMINUM & CHEMICAL COMPANY, GRAMERCY WORKS FACILITY SUBPOENA DUCES TECUM; ET AL.,MOVANTS,

IN RE: KAISER ALUMINUM AND CHEMICAL COMPANY, JULY 5, 1999 EXPLOSION AT KAISER ALUMINUM & CHEMICAL COMPANY, GRAMERCY WORKS FACILITY SUBPOENA DUCES TECUM; TERRY DENOVA; SYLVESTER BATISTE; KELLY DUFFY; BLACKIE LEBLANC; WILLIAM KIRSCH; DON PHILLIPS; GEORGE GUELFO; JOHN HALEY; RICHARD OSBORNE; WALTER BOUNDS; STEVEN BACALA; PETE JOHNSTON; ANTHONY VICKNAIR; GLEN LYNAGH; PATRICK HARRINGTON, BRIAN HATFIELD; WALTER HANSLEY; RUBEN COLE; KENNETH HYMEL; BRET HEBERT; SCOTT HALPHEN; JOSEPH KERNAN; MARTY WUNSTEL; HOWARD ANDERSON, MOVANTS-APPELLANTS,

DARRYL JACKSON; TERRY BROUILETTE; DON WILLIAMSON; BUD GARCIA; MATT MATTHEWS; SEYMOUR BROWN; WHIT CONWAY; FORREST BENGE; HERMAN FARLOUGH; DENNIS HAWES; ABE LOWE; DAVID STEELE; EARL VEAL, APPELLANTS, v. UNITED STATES DEPARTMENT OF LABOR, OFFICE OF MINE SAFETY AND HEALTH, MOVANT-APPELLEE.

No. 99-31072

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 12, 2000

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Eastern District of Louisiana.

Before Reavley, Smith and Emilio M. Garza, Circuit Judges.

Reavley, Circuit Judge:

Appellants Kaiser Aluminum & Chemical Co. and several of its employees (collectively Kaiser) appeal a district court order enforcing subpoenas duces tecum issued by the Department of Labor's Mine Safety and Health Administration (MSHA). Kaiser argues that MSHA does not have jurisdiction over the Kaiser facility in issue, and that certain documents are privileged. We affirm.

BACKGROUND

Kaiser's Gramercy Works in Louisiana is a plant that processes bauxite into aluminum oxide, known as alumina. The alumina is sold to other concerns for smelting into aluminum ingots.

On July 5, 1999, there was an explosion which occurred in one of the digestion units at the plant and resulted in numerous injuries. MSHA began an investigation and decided to convene a public hearing. Under section 103(b) of the Federal Mine Safety and Health Act ("Mine Act" or "Act"), 30 U.S.C. 813(b), MSHA may hold public hearings and issue subpoenas for the attendance of witnesses and the production of documents. The federal district courts have jurisdiction to issue orders enforcing MSHA subpoenas. Id.

Kaiser initiated the district court proceedings below by filing a motion to quash subpoenas issued by MSHA, claiming that they were overbroad. MSHA later sought to enforce certain subpoenas. Kaiser argued that MSHA did not have jurisdiction over its facility, and that certain documents were privileged under the attorney work product and "self-evaluation" privileges.

The district court required certain procedural safeguards for the benefit of Kaiser and its witnesses, but ruled that MSHA had jurisdiction over the facility. The district judge also agreed with a magistrate judge that certain pre-accident documents were not privileged, after both had reviewed the documents in camera.

DISCUSSION

A. District Court and Appellate Jurisdiction

This court sua sponte asked the parties to address appellate jurisdiction under the collateral order doctrine or another independent basis pursuant to 28 U.S.C. 1291 or 1292. Upon further reflection and review of the record, we are satisfied that we have appellate jurisdiction under 1291, which grants appellate jurisdiction over "all final decisions of the district courts." In general, a district court order is an appealable final decision if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States.¹ We are persuaded that the district court entered a final order on October 1, 1999 disposing of the remaining matters before it, namely the manner and extent to which Kaiser must comply with the MSHA subpoenas. An order enforcing an administrative subpoena is considered a final order. See United States v. Construction Prods. Research, Inc.²

MSHA argues that while the district court ruled correctly, it should not have even addressed the scope of the Mine Act but instead should have summarily enforced the subpoenas.³ MSHA claims that the district court exceeded its authority in entertaining Kaiser's challenge to MSHA's jurisdiction over the Kaiser plant.⁴

MSHA cites Fifth Circuit authority that district courts should handle agency subpoena requests "summarily and with dispatch," In re Office of Inspector General,⁵ and that the district court should play a "strictly limited" role in such matters, Sandsend Fin. Consultants, Ltd. v. FHLBB.⁶ However, we have also stated that courts will enforce an administrative subpoena if it "is within the agency's statutory authority" and other requirements are met. United States v. Chevron U.S.A., Inc.⁷ In the circumstances presented, we conclude that the district court had authority to decide, as a matter of statutory construction in the face of essentially uncontested facts regarding the industrial activities at the plant, whether the plant is a facility engaged in mining-related activities within the scope of the Mine Act.

B. Jurisdiction of MSHA over the Plant

Kaiser argues that MSHA does not have jurisdiction over the Gramercy Works, and that instead the plant is subject to regulation by the Occupational Safety and Health Administration (OSHA). Section 4 of the Mine Act, 30 U.S.C. 803, provides that each "coal or other mine" is subject to the provisions of the Act. "Coal or other mine" is defined under 3(h)(1) of the Act to mean:

(A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such minerals, or the work of preparing coal or other minerals, and includes custom coal preparation facilities. In making a determination of what constitutes mineral milling for purposes of this chapter, the Secretary shall give due consideration to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect to the health and safety of miners employed at one physical establishment

30 U.S.C. 802(h)(1) (emphasis added). We agree with the Sixth Circuit that this statute provides a "'sweeping definition'" for a mine, "encompassing much more than the usual meaning attributed to it." Bush & Burchett, Inc. v. Reich.⁸

The district court, agreeing with MSHA, concluded that the activities at the Kaiser plant constitute "milling" under the Act. There is little dispute about the industrial activities occurring at the Gramercy Works. Aluminum is produced in several stages. Bauxite, a natural ore consisting of a mixture of several minerals, is collected through surface mining. The bauxite is then subjected to the Bayer process to produce alumina. The alumina can then be smelted to produce aluminum metal.

The intermediate stage of producing alumina through the Bayer process is carried out at Kaiser's plant. Raw bauxite is mined in Jamaica, where it is screened and dried to produce a bauxite concentrate. The screening removes limestone rocks from the bauxite. The concentrate is purchased by Kaiser and delivered to its plant.

The Bayer process consists of several steps including digestion, clarification, precipitation, and calcination. In digestion, the bauxite is mixed with sodium hydroxide (caustic soda) to create a slurry or "liquor," and the slurry is then combined under high heat and pressure with steam in large vessels called digesters or digestors. This process creates a sodium aluminate solution. The solution then undergoes clarification, during which it is run through pressure reducers and heat exchangers, a settling tank, and filters, followed by precipitation (cooling and settling), and calcination (a drying process) to produce alumina, the end product at the plant. The alumina is shipped elsewhere for smelting into aluminum metal.

The issue presented is whether the alumina production process employed at the plant constitutes "milling" under the Act. Milling is not defined in the statute; instead, under 3(h)(1) quoted above, Congress expressly delegated to the Secretary of Labor authority to determine "what constitutes mineral milling for purposes" of the Act. We agree with the District of Columbia Circuit that this language "gives the Secretary discretion, within reason, to determine what constitutes mineral milling, and thus indicates that his determination is to be reviewed with deference . . . by . . . the courts. . . . In this highly technical area deference to the Secretary's expertise is especially appropriate." Donovan, 734 F.2d at 1552 & n.9.

When the language of a statute is unambiguous, we "must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.⁹ In matters of statutory construction made by an agency entrusted to administer a statute, if Congress has not directly addressed the precise question at issue, the court should defer to the agency's interpretation as long as it is reasonable. "[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Id. at 844, 104 S. Ct. at 2782. An interpretation is reasonable so long as it is not "arbitrary, capricious, or manifestly contrary to the statute...