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:


1
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

2
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.


3
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.


4
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.


5
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

6
A. District Court and Appellate Jurisdiction


7
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


8
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


9
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

10
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:


11
(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


12
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


13
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.


14
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.


15
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.


16
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.


17
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." Id.


18
Kaiser is correct that the statute excludes liquid extraction of minerals unless the extraction takes place with           workers underground. There is no underground extraction which takes place at the Gramercy Works. Instead           alumina is "extracted" at a surface facility, using a chemical process involving liquid stages, as discussed above.           But the statute by its terms covers a mine where the extraction of any nonliquid mineral, such as bauxite, takes           place, as well as any facility where the milling and preparing of "such minerals" takes place. So the issue is           whether the Bayer Process constitutes "milling" of solid bauxite ore.


19
Kaiser argues that, unlike other alumina companies, it does no crushing of bauxite at its plant. Webster's           Dictionary explains that the origin of the word "mill" goes back to the Latin "mola" for mill or millstone. The first           definition is "a building provided with machinery for grinding grain into flour." "Mill" can also mean "a machine for           crushing or comminuting some substance," and "to crush or grind (ore) in a mill."10 Kaiser also cites a           dictionary of mining and mineral terms, published by the American Geological Institute, defining a mill as a "plant           in which crushing, wet grinding, and further treatment of ore is conducted," and "a place or a machine in which           ore or rock is crushed."11 Under these definitions, the Bayer process of alumina production does not much           sound like milling.


20
Kaiser insists that the liquid-based alumina extraction process, i.e. the Bayer process, is "refining," not "milling,"           and that refining facilities are regulated by OSHA.Kaiser cites various published materials referring to the Bayer           process as a "refining" process. Under a 1979 Interagency Agreement between OSHA and MSHA, and a 1974           Memorandum of Understanding between OSHA and the Mining Enforcement and Safety Administration (the           predecessor to MSHA), "refining" falls within OSHA's jurisdiction, since by the terms of these agreements           refining "[c]ommences at the point where milling, as defined, is completed, and material enters the sequential           processes to produce a product of higher purity."12


21
Despite these arguments, we cannot say that MSHA's statutory interpretation of milling is unreasonable under           Chevron. At the outset, we note that the Interagency Agreement expressly includes alumina plants within the           jurisdiction of MSHA. Despite some general language ceding regulation of "refining" to OSHA, the Agreement           could not be more clear that "[p]ursuant to the authority in section 3(h)(1) to determine what constitutes mineral           milling . . . MSHA jurisdiction includes . . . alumina and cement plants."13


22
MSHA cites a dictionary of mining and mineral terms published by the U.S. Department of Interior which gives a           definition of mill as any facility that reduces ores by means other than smelting.14 MSHA also cites the           dictionary of mining and mineral terms published by the American Geological Institute, discussed above, which           again includes a definition of mill as any facility for reducing ores by means other than smelting, as well as a           definition as a facility where "metal ore is cleaned, concentrated, or otherwise processed before it is shipped to           the customer, refiner, smelter, or manufacturer."15 A facility employing the Bayer process falls under these           definitions, since this process does not involve smelting, and the end product, alumina, must be sent to a smelter           to produce aluminum metal.


23
Kaiser suggests that "milling" under the statute applies to physical processes only, and that the Bayer process is a           chemical process whereby the chemical composition of the mineral is altered. The statute by its terms does not           exclude chemical processes. MSHA cites legislative history of the Mine Act from a senate report that "it is the           Committee's intention that what is considered to be a mine and to be regulated under the Act be given the           broadest possible interpretation," and "that doubts be resolved in favor of inclusion of a facility within the           coverage of the Act."16 A house report cites dangers associated with mining to include poisonings caused by           "milling operations where the ore is liquified and then vaporized and condensed," and the "chemical processing of           ores."17


24
Kaiser argues that Herman v. Associated Elec. Coop., Inc.18 is "dispositive." In Herman, the defendant           operated an electric utility plant. It purchased crushed coal for its plant from two mines, and at the plant removed           debris and further crushed the coal for burning in its generator units. The court held that the facility was not a           mine under the Mine Act. The court reasoned that "[t]he Act was designed primarily to protect miners, notemployees of coal purchasers such as electric utilities and steel mills," id. at 1082, and that the utility "purchased           coal that was processed into a marketable form by the mine," id. at 1083. We do not entirely agree with the           majority opinion of the Eighth Circuit in Herman and distinguish the facts from our present case because the           electric utility there was not in the business of selling a raw or processed mineral product. An electric utility sells           electricity. The coal was used as an end product at the plant, and hence the utility was the final consumer of the           coal. In contrast, Kaiser is in the business of processing, or as MSHA claims, "milling," a mineral product for sale           to others. Herman did not address whether the electric utility engaged in milling under the statute.

C. Privilege Issue

25
Kaiser claims that certain documents of the "Overpressure Protection Committee" were privileged, and that the           district court misapplied the legal standards applicable to the privilege issue. This committee was formed by           Kaiser in the late 1970's to study the existing pressure vessels used at the Gramercy Works, and determine how           procedures could be improved and liability minimized. It is unclear from the record and briefs whether the           documents in issue were prepared by the committee itself or were prepared by others and presented to the           committee for its review. The documents in issue are not a part of the appellate record.


26
Both the magistrate judge and the district judge reviewed the documents in camera, and ordered the disclosure of           certain documents that were prepared before the accident. Kaiser claims that the documents were privileged           under the work product and "self-evaluation" privileges.


27
The work product privilege applies to documents "prepared in anticipation of litigation." Fed. R. Civ. P.           26(b)(3). The law of our circuit is that the privilege can apply where litigation is not imminent, "as long as the           primary motivating purpose behind the creation of the document was to aid in possible future litigation." United           States v. El Paso Co.19 Kaiser argues that the district court erred in applying this "primary purpose" test. The           court correctly followed Fifth Circuit precedent..


28
As for the self-evaluation privilege,20 Fed. R. Evid. 501 states that privileges "shall be governed by the           principles of the common law as they may be interpreted by the courts of the United States in the light of reason           and experience." Privileges "are not lightly created nor expansively construed, for they are in derogation of the           search for truth." United States v. Nixon.21 The Fifth Circuit has not recognized the self-evaluation privilege,           and "courts with apparent uniformity have refused its application where, as here, the documents in question have           been sought by a governmental agency." FTC v. TRW, Inc.22 The Ninth Circuit, in rejecting application of           the privilege, also noted that "the difference between pre-accident safety reviews and post-accident investigations           is an important one." Dowling v. American Hawaii Cruises, Inc.23 We need not decide whether a           self-evaluation privilege should ever be recognized. We decline to recognize such a privilege in the circumstances           presented, namely a case where a government agency seeks pre-accident documents.


29
AFFIRMED.



Notes:


1
  324 U.S. 229, 233, 65 S. Ct. 631, 633 (1945).


2
  73 F.3d 464, 469 (2d Cir. 1996).


3
  By extension of this argument, we assume that MSHA would have us summarily affirm the district court           without reviewing the scope of the Mine Act.


4
  Kaiser and MSHA disagree on whether this argument was raised below. We assume without deciding that           it was raised below.


5
  933 F.2d 276, 277 (5th Cir. 1991).


6
  878 F.2d 875, 879 (5th Cir. 1989).


7
  186 F.3d 644, 647 (5th Cir. 1999).


8
  117 F.3d 932, 936 (6th Cir. 1997) (quoting Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1554           (D.C. Cir. 1984)).


9
  467 U.S. 837, 843, 104 S. Ct. 2778, 2781 (1984).


10
  Webster's Third New International Dictionary 1434 (Phillip B. Gove ed., 1968).


11
  American Geological Inst., Dictionary of Mining, Mineral, and Related Terms 344 (2d ed. 1996).


12
  Interagency Agreement, 44 Fed. Reg. 22,827, 22,830 (1979); Memorandum of Understanding Between           MESA and OSHA, 39 Fed. Reg. 27,384, 27,384 (1974).


13
  Interagency Agreement, at 22,827.


14
  U.S. Dept. of the Interior, A Dictionary of Mining, Mineral, and Related Terms 706 (Paul W. Thrush &           Staff of the Bureau of Mines eds., 1968).


15
  American Geological Inst., Dictionary of Mining, Mineral, and Related Terms 344 (2d ed. 1996).


16
  S. Rep. No. 95-181, at 14 (1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3414.


17
  H.R. Rep. No. 95-312, at 10-11 (1977), reprinted in Subcommittee on Labor of the Senate Comm. on           Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 366,           368-69 (1978).


18
  172 F.3d 1078 (8th Cir. 1999).


19
  682 F.2d 530, 542 (5th Cir. 1982) (quoting United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. Unit           A 1981)).


20
  The self-evaluation privilege is also known as the "self-critical analysis" privilege and the "self-evaluative"           privilege.


21
  418 U.S. 683, 710, 94 S. Ct. 3090, 3108 (1974).


22
  628 F.2d 207, 210 (D.C. Cir. 1980).


23
  971 F.2d 423, 427 (9th Cir. 1992).


