UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MINGO LOGAN COAL COMPANY,
Petitioner,

v.

SECRETARY OF LABOR; MINE SAFETY
                                                                         No. 97-1392
AND HEALTH ADMINISTRATION;
FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION,
Respondents.

On Petition for Review of an Order
of the Federal Mine Safety & Health Review Commission.
(93-392)

Argued: October 27, 1997

Decided: January 8, 1998

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David J. Hardy, JACKSON & KELLY, Charleston, West
Virginia, for Petitioner. Robin Ann Rosenbluth, Office of the Solici-
tor, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondents. ON BRIEF: J. Davitt McAteer, Acting Solici-
tor of Labor, Edward P. Clair, Associate Solicitor, W. Christian Schu-
mann, Counsel, Appellate Litigation, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The Secretary of Labor issued Mingo Logan Coal Company, the
production-operator of the Mountaineer Mine in Mingo County, West
Virginia, a § 104(a) citation, see 30 U.S.C.A. § 814(a) (West 1986),
for a training violation committed by its independent contractor,
Mahon Enterprises. Mingo Logan contested the citation, arguing that
the Secretary impermissibly issued it in violation of the "Enforcement
Policy and Guidelines for Independent Contractors" (the Enforcement
Guidelines) published by the Secretary in the Federal Register. See 45
Fed. Reg. 44,494, 44,497 (1980). The Federal Mine Safety and Health
Review Commission, affirming the Administrative Law Judge,
upheld the citation. The Commission concluded that the Secretary did
not abuse his discretion in citing Mingo Logan for the violation. For
the reasons set forth below, we affirm.

I.

In 1991, Mingo Logan contracted with Mahon, an independent
contractor registered with the Mine Safety and Health Administration
(MSHA), for the performance of various mine-related services at its
Mountaineer Mine in Mingo County, West Virginia. Mahon was
responsible for the hiring, training, and supervising of its own
employees. Mahon hired Timothy Sergeant to work on a conveyor
belt project in the mine. The Federal Mine Safety and Health Act of
1977 (the Mine Act) required Mahon to provide health and safety
training to its employees. See 30 U.S.C.A.§ 825 (West 1986). Rely-
ing upon Sergeant's verbal representations that he was an "experi-

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enced" miner, Mahon provided Sergeant with "newly employed
experienced miner training." See 30 C.F.R. § 48.6 (1997).

On July 28, 1992, Sergeant was injured when he placed his back
up against a moving conveyor in an attempt to free a fellow miner
whose arm was caught between the belt and a bottom roller. On
August 3, 1992, Inspector Robert Rose conducted a records audit of
Mahon's training records and personnel files. These records revealed
that Sergeant did not qualify as an "experienced" miner, and there-
fore, he should have received new miner training rather than experi-
enced miner training. See 30 C.F.R. § 48.5 (1997).

As a result, Inspector Rose issued a § 104(a) citation, see 30
U.S.C.A. § 814(a) (West 1986), to Mingo Logan for violating 30
C.F.R. § 48.5 by failing to ensure that an employee of its independent
contractor was properly trained, and issued a § 104(g)(1) withdrawal
order citation, see 30 U.S.C.A. § 814(g)(1) (West 1986), to Mahon.1
Mahon paid a civil penalty for the violation. On January 8, 1993,
Inspector Rose subsequently modified Mingo Logan's§ 104(a) cita-
tion to a § 104(g)(1) withdrawal order citation, and Mingo Logan was
_________________________________________________________________
1 30 U.S.C.A. § 814(a) (West 1986) provides, in part, that:

         If, upon inspection or investigation, the Secretary . . . believes
         that an operator of a coal or other mine subject to this chapter
         has violated this chapter, or any mandatory health or safety stan-
         dard, rule, order, or regulation promulgated pursuant to this
         chapter, he shall, with reasonable promptness, issue a citation to
         the operator.

30 U.S.C.A. § 814(g)(1) (West 1986) provides, in part, that:

         If, upon any inspection or investigation pursuant to section 813
         of this title, the Secretary . . . shall find employed at a coal or
         other mine a miner who has not received the requisite safety
         training as determined under section 825 of this title, the Secre-
         tary . . . shall issue an order under this section which declares
         such miner to be a hazard to himself and to others, and requiring
         that such miner be immediately withdrawn from the coal or other
         mine, and be prohibited from entering such mine until an autho-
         rized representative of the Secretary determines that such miner
         has received the training required . . . .

                    3
assessed a $5500 fine. On April 28, 1993, however, the § 104(g)(1)
order was rescinded and the § 104(a) citation was reinstated.

Mingo Logan challenged the § 104(a) citation in a hearing before
an ALJ. In his February 15, 1995, order, the ALJ concluded that the
Secretary's decision to cite Mingo Logan for the training violation of
its independent contractor was not an abuse of discretion. Accord-
ingly, the ALJ upheld the enforcement of the citation and ordered
Mingo Logan to a pay a $100 fine.2 The Commission affirmed
enforcement of the citation by order dated March 3, 1997. It agreed
with the ALJ that the Secretary may hold a production-operator
strictly liable for any violation of the Mine Act occurring at its mine
site, including those committed by its independent contractors. Rely-
ing upon Mingo Logan's significant involvement in the day-to-day
operation of the mine and the Secretary's adherence to the Enforce-
ment Guidelines' standard for enforcement action, the Commission
concluded that the Secretary did not abuse his discretion in citing
Mingo Logan. The Commission further noted that the citation to
Mingo Logan as lessee and production-operator of the mine promoted
the protective purposes of the Mine Act by encouraging Mingo Logan
to use only those independent contractors with strong safety records.

On appeal, Mingo Logan argues that the Secretary impermissibly
abandoned his policy, published in the Federal Register, regarding
training violations by independent contractors. Mingo Logan believes
that the policy prohibits the Secretary from citing production-
operators for training violations involving their independent contrac-
tors' employees. We reject Mingo Logan's claim and conclude that
the Secretary did not abandon any binding policies, but rather acted
within his discretion. In so holding, we note that (1) the Enforcement
_________________________________________________________________
2 The Secretary asserted that Mingo Logan's violation was "significant
and substantial." See 30 U.S.C.A. § 814(a) (West 1986) (noting the
adverse consequences of a finding that a violation was significant and
substantial). The ALJ, however, rejected the Secretary's assertion, con-
cluding that the Secretary had failed to show that there was a reasonable
likelihood of an injury-producing event as a result of this training viola-
tion. To the contrary, the ALJ found that Sergeant's injuries "resulted
from a lack of common sense, rather than any lack of appropriate train-
ing." (J.A. at 227.) The Secretary has not appealed this finding.

                    4
Guidelines are "general statements of policy" and therefore are not
binding upon the Secretary, and (2) the Secretary nevertheless acted
consistently with the Enforcement Guidelines.

II.

Congress delegated the responsibility for implementing the Mine
Act to the Secretary of Labor. As a result, the Secretary's interpreta-
tion of the accompanying statutes and regulations is entitled to sub-
stantial deference by the courts. See Secretary of Labor v. Mutual
Mining, Inc., 80 F.3d 110, 114 (4th Cir. 1996). When reviewing a
challenge to the Secretary's interpretation of his own regulations, we
need only determine whether the Secretary's interpretations are in
accord with the Mine Act. See id. at 115. Because we conclude that
the Secretary's view that it may cite both the independent contractor
and the production-operator for a training violation involving an
employee of the independent contractor promotes the Mine Act's goal
of protecting the health and safety of the miner and is a reasonable
interpretation of his statutory authority, we affirm.

The Mine Act provides that:

          If, upon inspection or investigation, the Secretary or his
          authorized representative believes that an operator of a coal
          or other mine subject to this chapter has violated this chap-
          ter, or any mandatory health or safety standard, rule, order,
          or regulation promulgated pursuant to this chapter, he shall,
          with reasonable promptness, issue a citation to the operator.

30 U.S.C.A. § 814(a) (West 1986) (emphasis added). Congress
defined "operator" to include "any owner, lessee, or other person who
operates, controls, or supervises a coal or other mine or any indepen-
dent contractor performing services or construction at such mine." 30
U.S.C.A. § 802(d) (West 1986). In Bituminous Coal Operators' Ass'n
v. Secretary of Interior, 547 F.2d 240 (4th Cir. 1977), we held, and
Mingo Logan does not dispute, that the Secretary may impose liabil-
ity for safety violations involving an independent contractor upon
either the independent contractor or the production-operator, or both.3
_________________________________________________________________
3 Although we decided Bituminous Coal Operators' Ass'n v. Secretary
of Interior, 547 F.2d 240 (4th Cir. 1977), under the Mine Act's predeces-

                    5
Id. at 246-47 (holding "that the Act does not prohibit the Secretary
from holding a mining company and a construction company jointly
or severally liable for violations committed by the construction com-
pany").

Mingo Logan contends, however, that the Secretary has limited this
statutory authority by publishing a policy specifically governing the
enforcement of training violations. The policy relied upon by Mingo
Logan was published in the Federal Register as part of the Enforce-
ment Guidelines disseminated by the MSHA to "be used by inspec-
tors as guidance in making individual enforcement decisions." 45 Fed.
Reg. 44,494, 44,495 (1980). It provides that:

          An order should be issued under section 104(g) of the Act
          of [sic] the direct employer of any miner who has not
          received the required training under Part 48. This means that
          a 104(g) order should be issued to the independent contrac-
          tor for any persons who are directly employed by the inde-
          pendent contractor and not properly trained. Similarly, a
          104(g) order should be issued to the production-operator for
          any untrained persons directly employed by the production-
          operator.

Initial Enforcement Guidelines for Independent Contractors, 45 Fed.
Reg. 44,494, 44,498 (1980).4 Mingo Logan interprets this language to
provide that only independent contractors, not production-operators,
will be cited for training violations involving the employees of inde-
pendent contractors. We find that Mingo Logan's analysis is flawed.
_________________________________________________________________
sor, the Federal Coal Mine Health and Safety Act of 1969, its holding
regarding whom the Secretary may cite for independent contractor viola-
tions applies with equal force to the Mine Act. See Harman Mining
Corp. v. Federal Mine Safety & Health Review Comm'n , 671 F.2d 794,
797 n.2 (4th Cir. 1981) (noting that "[c]ases construing whom the Secre-
tary of [Labor] may cite under the Coal Act for independent contractors'
violations have continuing validity under the Mine Act").
4 Even though the policy relied upon by Mingo Logan appears to limit
the issuance of § 104(g) withdrawal orders only, Mingo Logan contends
that this provision should be read to encompass§ 104(a) citations when
the § 104(a) citation results from a training violation.

                    6
First, we agree with the Commission, and Mingo Logan concedes,
that the Enforcement Guidelines are simply "general statements of
policy" which the Secretary need not strictly observe. See Brock v.
Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C. Cir.
1986) (Scalia, J.) (holding that the Secretary's Enforcement Guide-
lines did not establish binding, substantive rules which the Secretary
was required to strictly observe). Therefore, even if the Secretary did
not strictly adhere to the provisions outlined in the Enforcement
Guidelines, this would not necessarily prove fatal to the Secretary's
enforcement decision. As then-Judge Scalia explained, the Enforce-
ment Guidelines expressly warn that they are only a"general enforce-
ment policy" that do not change the basic compliance responsibilities
of production-operators which include assuring compliance with the
standards and regulations which apply to the work being performed
by the independent contractors at the mine. See id. at 538 (citing Gen-
eral Enforcement Policy for Independent Contractors, 45 Fed. Reg.
44,494, 44,497).

Unlike the court in Cathedral Bluffs, however, we need not deter-
mine whether the Secretary's decision to arguably deviate from the
Enforcement Guidelines should be overturned because the Secretary's
decision to issue a citation to Mingo Logan was not contrary to, but
consistent with, the plain language of the Enforcement Guidelines.
Two sections of the Enforcement Guidelines are pertinent to this
appeal -- the general provisions and the specific provisions regarding
training violations.

The more general provisions outline the "overlapping" compliance
responsibilites of the production-operators and the independent con-
tractors. The Enforcement Guidelines provide four examples of when
it would ordinarily be appropriate, "as a general rule," to issue cita-
tions to both the production-operator and the independent contractor
for violations involving the independent contractor. See 45 Fed. Reg.
44,494, 44,497.5 We agree with both the ALJ and the Commission
_________________________________________________________________
5 The Enforcement Guidelines state:

          [A]s 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 omis-

                    7
that substantial evidence was presented to show that Mingo Logan's
employees were at risk as a result of Mahon's training violation, one
of the examples expressly noted in the Guidelines for when "overlap-
ping" compliance should be enforced.6 Therefore, the Secretary's
issuance of a citation to Mingo Logan was within the criteria set forth
in the Enforcement Guidelines.

We further find that, contrary to Mingo Logan's assertion, the Sec-
retary's action was consistent with his specific policy regarding train-
ing violations. Nothing in the policy's language attempts to abrogate
the Secretary's overall scheme to hold production-operators ulti-
mately liable for violations occurring in their mines. The policy sim-
ply emphasizes that independent contractors should be held directly
liable for training violations involving their employees. It in no way,
however, limits the Secretary's authority to also issue a citation to the
production-operator. Moreover, we agree with the Commission that
holding production-operators liable for the training violations of their
independent contractors encourages production-operators to employ
only those independent contractors with exemplary health and safety
records, thereby promoting the protective purposes of the Mine Act.
_________________________________________________________________

          sion to the occurrence of a violation in the course of an indepen-
          dent contractor's work, or (2) when the production-operator has
          contributed by either an act or omission to the continued exis-
          tence 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. 44,494, 44,497 (1980).

6 The ALJ and the Commission found that Mingo Logan and Mahon
employees were generally in the same vicinity so that an inadequately
trained Mahon employee put Mingo Logan employees at risk. They also
specifically found that while only Mahon employees staffed the con-
veyor belt operated by Sergeant, Mingo Logan employees were in the
adjoining entryways such that if Sergeant had lit a cigarette or created
another hazard, Mingo Logan employees would have been exposed to a
dangerous situation.

                    8
III.

In conclusion, we affirm the orders of the ALJ and the Commission
upholding the enforcement of the § 104(a) citation against Mingo
Logan. The Secretary's voluntary adherence to Enforcement Guide-
lines to which he was not bound, coupled with Mingo Logan's
involvement in the daily operations of the mine, convince us that the
Secretary's decision to cite Mingo Logan for a training violation com-
mitted by its independent contractor was not an abuse of discretion.7

AFFIRMED
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7 As a result of our disposition of this appeal, we need not address
whether the Secretary has unreviewable discretion as to enforcement
decisions, an alternative ground raised by the Secretary for enforcing the
citation. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("As a general
rule courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach."); see also
Auvil v. Grafton Homes, Inc., 92 F.3d 226, 231 (4th Cir. 1996).

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