<DOC>
[DOCID: f:knt94574d.wais]

 
BERWIND NATURAL RESOURCES CORP.
December 16, 1999


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                   1730 K STREET NW, 6TH FLOOR

                     WASHINGTON, D.C.  20006


                        December 16, 1999

SECRETARY OF LABOR,              :
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA)          :
                                 :
          v.                     : Docket Nos. KENT 94-574-R
                                 :     through KENT 94-797-R
BERWIND NATURAL RESOURCES CORP., :         and KENT 94-862-R
  KENTUCKY BERWIND LAND COMPANY, :
  KYBER COAL COMPANY, and        :
  JESSE BRANCH COAL COMPANY      :


BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
        Commissioners


                            DECISION

BY: Jordan, Chairman; Marks, Riley, and Beatty, Commissioners

     These consolidated contest and civil penalty proceedings,
arising under the Federal Mine Safety and Health Act of 1977, 
30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involve 
225 citations and orders issued for alleged violations of 
mandatory standards at the Elmo No. 5 Mine in Pike County, 
Kentucky, in connection with an explosion that occurred on 
November 30, 1993, killing one miner. 18 FMSHRC 202, 205 (Feb. 
1996) (ALJ). The citations and orders were issued by the 
Department of Labor's Mine Safety and Health Administration 
("MSHA") to AA&W Coals, Inc. ("AA&W"), the company that 
contracted to operate the mine, as well as Berwind Natural 
Resources Corporation ("Berwind"), Jesse Branch Coal Company 
("Jesse Branch"), Kentucky Berwind Land Company ("Kentucky 
Berwind"), and Kyber Coal Company ("Kyber"). Id.  On February 
23, 1996, Administrative Law Judge David Barbour issued a 
decision in which he concluded that Berwind, Kentucky Berwind 
and Jesse Branch were not operators of the Elmo No. 5 Mine 
within the meaning of the Mine Act.  Id. at 233-34, 235-36,
241-43.  The judge also rejected the Secretary's theory that
Berwind and its subsidiary corporations constituted a 
"unitary operator" under the Mine Act. Id. at 233. Finally, 
the judge concluded that Kyber was an operator because of its 
active participation in mine operations and its authority to 
participate in the decision-making process regarding the daily 
development of the mine through projections.  Id. at 240.

     The Commission granted cross-petitions for discretionary
review filed by the Secretary and Kyber.  The Commission also
granted motions permitting amicus curiae participation by the
National Mining Association ("NMA"), the National Council of
Coal Lessors, Inc. ("NCCL"), and Coal Operators and Associates, 
Inc. ("COA"), in support of Berwind, Jesse Branch, Kentucky 
Berwind, and Kyber (collectively referred to as "Contestants"); 
and by the United Mine Workers of America ("UMWA") and the 
United Steelworkers of America ("USWA") in support of the 
Secretary. In addition, the Commission heard oral argument in 
the case.  For the reasons that follow, we affirm in part, 
vacate in part, and remand.

                                I.

                Factual and Procedural Background

     A.   Contestants' Activities and Scope of Authority

     Berwind is a holding company incorporated in Delaware 
and located in Philadelphia. 18 FMSHRC at 208. Kyber, Jesse 
Branch, and Kentucky Berwind are all wholly-owned subsidiaries 
of Berwind.  Id. at 205, 208.  Berwind's primary business as 
a holding company is to oversee the operations of its 
subsidiaries. Id. at 208-09.  Berwind is also involved in 
decisions that affect the general direction of the business 
of its subsidiaries and, as sole shareholder, has the power 
to unilaterally replace the officers of its subsidiaries. Id. 
at 209. Berwind received periodic production reports and 
financial statements from its subsidiaries, which were used 
to project cash flow and monitor their economic performance 
as well as the production and quality of coal mined at leased 
mining property. Id. at 209-10. Berwind reviewed and approved 
the budgets submitted by its subsidiaries, and allocated 
capital to each as necessary to meet their budget. Id. at 212. 
Expenditures by subsidiaries in excess of budgetary limits 
were subject to approval by Berwind.  Id.  Berwind provided 
funds to Jesse Branch and Kyber for their operating expenses 
and capital expenditures, since neither subsidiary was
profitable.  Id.  Significant capital expenditures of these
companies, such as the purchase of coal preparation plants 
and the costs of opening new mines, were approved by Berwind. 
Id. Berwind had no direct relationship with AA&W with respect 
to the operation of the Elmo No. 5 Mine. Id. at 211. It never 
provided funding, loans or advances to AA&W; did not provide 
any supplies, materials, machinery, or tools to AA&W for use 
at the mine; and did not receive any production or financial 
reports from AA&W. Id.

     Kentucky Berwind is a Kentucky corporation with its
principal place of business in Charleston, West Virginia, and 
an office in Kentucky.  Id. at 208.  It owns approximately 
90,000 acres of coal reserves in Pike County, Kentucky. Id. 
Kentucky Berwind leased coal reserves to 21 different lessees 
in Pike County, including Kyber.  Id. at 212.  Kentucky 
Berwind never funded any of AA&W's mining operations, and it 
did not provide or sell supplies, machinery or tools to the 
Elmo No. 5 Mine.  Id. at 210, 236.  It did not require AA&W 
to obtain its approval for the purchase or lease of mining
 machinery or equipment, and did not own any of the equipment 
used by AA&W at the mine. Id. at 210.

     Kyber and Jesse Branch are both Kentucky corporations 
that lease land and coal reserves from Kentucky Berwind and 
contract out the actual mining of the coal. Id. at 206-07. 
Neither Kyber nor Jesse Branch are regularly engaged in the 
extraction of coal. Id. at 207, 228. Kyber and Jesse Branch 
both own and operate separate preparation plants at which 
almost all coal mined by their contractors is blended, sized,
and washed. Id. at 207. Kyber used Jesse Branch exclusively 
to provide surveying services, including preparation of mine 
maps and setting spads, at mines that it leased. Id. at 228.

     In 1984, Kyber entered into an oral lease with Kentucky
Berwind for the right to mine coal at the Elmo No. 5 Mine in
return for the payment of rent and royalties to Kentucky 
Berwind. 17 FMSHRC 684, 689 (Apr. 1995) (ALJ). In April 1991, 
Kentucky Berwind and Kyber entered into a written lease for 
the mine. Id. Meanwhile, during the spring of 1990, Kyber 
entered into a contract with AA&W for the mining of coal at 
that location by AA&W.  Id. at 689-90.  Jimmy Walker, the 
president of Kyber and Jesse Branch, and Steve Looney, vice 
president of operations for the two companies, selected AA&W 
to operate the mine. Id. at 689.

     The contract between Kyber and AA&W with respect to 
mining coal at the Elmo No. 5 Mine was similar to that 
entered into by Kyber with other contract operators.[1] Id. 
at 690; Joint Stipulations of Fact ("JSF") 100. The contract 
provided for the payment of a variable price to AA&W for 
each ton of coal mined and deposited in a stockpile outside 
the mine.  17 FMSHRC at 690. The contract required AA&W to 
obtain all necessary mining permits that were not obtained 
by Kyber, and to post all required bonds. Id.  The contract
also specified that mining was to be conducted in accordance 
with mining projections established by Kyber's engineers.  
Id. at 694.

     To prepare for mining, Kyber determined the location 
of portals to the mine and contracted with a third party 
to prepare the area for the development of portals and to 
establish a stockpile area. Id. at 691. Kyber also contracted 
for the construction of a haulage road to serve the mine and 
developed drainage ponds for mine runoff. Id. Coal production 
began at the Elmo No. 5 Mine in May 1990. Id. at 689. Before 
the mine opened, Kyber obtained some of the state and federal
environmental permits necessary to conduct mining and paid 
some of the permit fees.  Id. at 690.  AA&W obtained and paid 
for the state mining license and posted the state bond.  Id.  
Using a coal reserve study prepared for Kentucky Berwind 
several years earlier, Kyber developed a coal reserve map 
that indicated the location of coal reserves that Kyber 
expected AA&W to recover. Id. at 694.

     AA&W employed about 20 miners at the mine, who produced
between 180,000 and 200,000 tons of coal per year. 18 FMSHRC 
at 206.   Mining was conducted by cutting machines, drilling
machines, and explosives.  17 FMSHRC at 689.  Most of the
mining conducted was advance mining, under which the main
entries were usually driven on 60 foot centers, and rooms off
the entries were driven on 40 foot centers.  Id.  AA&W and
Kyber jointly agreed that mining could be conducted on 40
foot centers in certain areas.  Id. at 695.  AA&W provided
the equipment, machinery, and tools necessary to extract coal
from the mine and transport it to the stockpile outside. Id.
Once outside, the coal was loaded onto trucks by drivers for
independent trucking companies for transportation to the Kyber
preparation plant, using a front-end loader supplied by AA&W
Id.

     Jesse Branch provided map drafting and surveying services 
at the Elmo No. 5 Mine, and set spads upon request by AA&W. 18
FMSHRC at 207; 17 FMSHRC at 692. Kyber paid Jesse Branch a fee
for these services that was based upon the volume of coal
produced by AA&W.  18 FMSHRC at 207.  Jesse Branch employees
generally surveyed and set spads at the mine on a weekly basis.
17 FMSHRC at 692-93.  Jesse Branch also prepared all the mine
maps used at the mine, which showed the areas of the mine from
which coal had been extracted and the areas in which future
mining was projected.  Id. at 692; 18 FMSHRC at 241.  In
addition, Jesse Branch employees recorded the height of 
coal seams and entryways, and noted the locations of pillars 
and centers on which mining was conducted, stopping lines, 
conveyor belt lines, roof falls, and gas wells that would 
intersect the mine.  17 FMSHRC at 693.  This information was 
recorded in a "field book" for the mine that was kept in 
Jesse Branch's offices.  Id.  Jesse Branch's engineers also 
notified AA&W when the cover - the thickness of rock between 
the mine workings and the surface -  would not sustain the 
number of entries projected by AA&W, or when the cover would 
allow more or wider entries.  18 FMSHRC at 241-42.

     The projections for the mine were developed jointly by 
Kyber and AA&W, but were subject to final approval by Kyber. 
Id. at 237.  The mining projections showed the direction of 
mine development, the number of entries to be developed, 
the centering to be used for the entries, the position of 
cross-cuts, and, in some instances, the overall distance to 
be mined.  Id.  Once approved by Kyber, the projections were 
incorporated by Jesse Branch into mine maps.  17 FMSHRC at 
694.  Once the projections were established and approved by 
Kyber, they could not be unilaterally modified by AA&W; 
instead AA&W was contractually obligated to follow them.  
18 FMSHRC at 237.  If AA&W and Kyber agreed to changes in 
the projections, they were incorporated by Jesse Branch in 
a revised mine map that was then submitted by AA&W to federal 
and state regulatory authorities. 17 FMSHRC at 694. Kentucky 
Berwind had no input into the formulation of projections for 
the mine, and had nothing to do with the roof control and 
ventilation plans under which the mine operated or mining 
sequence decisions.  18 FMSHRC at 236.

     When AA&W believed that it could not mine to the full 
extent of the projections, for safety reasons or because the 
coal seam became too thin, it notified Kyber.  17 FMSHRC at 
694; JSF 184. Kyber had the right under the contract to 
reject any proposal by AA&W to deviate from the projections 
if it would not lead to the efficient extraction of coal.  
18 FMSHRC at 237-38.  Kyber never challenged AA&W's opinion 
that mining should be discontinued because of safety 
considerations, such as poor roof conditions. Id. at 238. 
It did, however, occasionally deny requests by AA&W to 
discontinue mining for other reasons. Id. When Kyber agreed
with a proposal by AA&W to deviate from the mining projections,
Kyber notified Kentucky Berwind and requested it to inspect 
the area in order to protect Kyber from liability for wasting 
coal reserves.  17 FMSHRC at 694, 713-14.  Kyber also notified
Kentucky Berwind when an area slated to be mined was removed 
from the projection.  Id. at 714.  Kentucky Berwind employees 
never disagreed with Kyber and AA&W about the propriety of
discontinuing mining in specified areas of the mine.  18 
FMSHRC at 235.  Kentucky Berwind could contact Kyber if it 
believed that coal was not being mined effectively, but it 
never did so at this mine.  17 FMSHRC at 696.

     Kyber's employees visited the mine occasionally to check 
on the height and quality of the coal seam, to carry out its
obligation to insure that coal reserves were mined to the
greatest extent possible.  Id.  Kyber's employees also
occasionally visited the site at the request of AA&W.  Id.
Although Kyber's employees had the right to go onto the mine
property at will, they generally first notified AA&W before
entering the mine.  Id.

     Kentucky Berwind employees visited the mine quarterly, 
or upon request, to examine the workings, ensure that coal 
was being properly recovered, and check seam heights and 
tonnages to confirm royalties.  18 FMSHRC at 210-11.  After 
conducting their inspections, these  employees prepared 
reports on their visits that were used by Kentucky Berwind 
to track mining operations. 17 FMSHRC at 696. These reports 
contained information on the percentage of coal projected 
for extraction, the average coal production per shift and per 
month, and the ash content of the coal mined.  Id. at 713.  
The reports were used to calculate the tonnage of coal mined, 
the tonnage remaining to be mined, and the areas to be mined.  
Id. at 696. Kentucky Berwind inspectors conducted inspections 
at the mine twice in 1990, seven times in 1991, twice in 1992, 
and five times in 1993.  Id. at 697.

     Kyber occasionally contacted AA&W when it felt that the
amount of rock in the coal was excessive.  Id. at 697.  AA&W
sometimes requested a waiver of contractual penalties for low
quality coal when it was mining in an area where the ash 
content of the coal was unusually high. Id. at 695. In such 
situations, Kyber sent a representative to the mine to 
determine the cause of the poor coal quality.  Id.  In some 
cases, Kyber consulted with Kentucky Berwind regarding whether 
mining should continue in that area.  Id.  Kyber and AA&W 
would then jointly determine the best course of action. Id.

     Pursuant to its contract with Kyber, AA&W paid all state 
and federal income taxes, social security taxes, and 
unemployment compensation payments for its employees. Id. at 
691. Kyber paid state severance taxes, federal black lung 
excise taxes, and state and federal reclamation taxes with 
funds owed to, and withheld from, AA&W. Id. Kyber paid for 
electricity supplied to the mine, and deducted the amount 
paid from the payments it made to AA&W.  Id. at 692.  Kyber 
also deducted from its payments to AA&W the cost of an 
electrical substation it had purchased and installed at the 
mine. Id.

     B.   Proceedings Below

     On November 30, 1993, an explosion occurred at the Elmo 
No. 5 Mine that resulted in the death of one miner. 18 FMSHRC 
at 205.  Following an investigation of the accident, MSHA 
issued 225 citations and orders jointly to AA&W, Berwind, 
Jesse Branch, Kentucky Berwind,[2]  and Kyber. Id.

     The contest proceedings were bifurcated so that the
jurisdictional status of Berwind, Jesse Branch, Kentucky 
Berwind, and Kyber could be resolved before the merits of 
the individual cases were addressed. Id. at 206. Following 
extensive discovery, the parties filed 302 joint 
stipulations of fact, as well as cross-motions for summary 
decision on the status of the Contestants as operators under 
the Mine Act. Id.

     On April 24, 1995, Judge Barbour issued an order and 
notice of hearing in which he denied the Secretary's motion 
for summary decision and granted the Contestants' motion 
regarding the status of Berwind and Jesse Branch, concluding 
that the undisputed facts established that these two companies 
were not operators within the meaning of the Mine Act. 17 
FMSHRC at 710-12, 715-16, 717. The judge also denied the 
Contestants' motion for summary decision as to Kyber and 
Kentucky Berwind, concluding that the stipulated facts did 
not conclusively establish whether these two entities 
exercised day-to-day control over the operations of the
Elmo No. 5 Mine, or had the authority to do so.  Id. at 
706-10, 712-15, 716-17. The judge concluded that additional 
evidence was necessary to resolve issues relating to these 
two companies, and therefore directed a hearing for the 
purpose of eliciting additional evidence regarding whether 
Kyber and Kentucky Berwind were operators of the mine. Id. 
at 716-17.

     The hearing was conducted on June 27 and 28, 1995, in
Pikeville, Kentucky. 18 FMSHRC at 213. On February 23, 1996,
Judge Barbour issued a decision in which he reconsidered his
earlier decision based upon the additional evidence elicited 
at the hearing.  Addressing the appropriate standard for 
determining whether Berwind and its subsidiaries were 
"operators" of the Elmo No. 5 Mine, the judge concluded that 
the purpose of the statutory definition of "operator" in 
section 3(d) of the Mine Act is "to place responsibility for 
health and safety upon those entities that create the 
conditions at the mine or that have actual authority over 
the conditions on the theory that such responsibility will 
further compliance."  Id. at 231.  The judge explained:  
"Control may be either direct or indirect, but it must be 
actual.  In other words, an operator must `call the shots' 
at a mine regarding its day-to-day operation, or have the
authority to do so."  Id. (citations omitted).  The judge 
thus concluded that "in order to establish an entity as an 
`operator' subject to the Act, the Secretary must prove that 
the entity, either directly or indirectly, substantially 
participated in the operation, control, or supervision of 
the day-to-day operations of the mine, or had the authority 
to do so."  Id. (citations omitted).

     The judge rejected the Secretary's argument that Berwind 
and its subsidiary corporations constituted a "unitary 
operator" under the Mine Act on the grounds that this theory 
represented a significant deviation from the Secretary's past 
enforcement policy with respect to interrelated corporate 
entities, that it would interfere with the rights of the 
entities to be treated as separate corporate entities, and 
that it could be used to extend jurisdiction without logical 
limit. Id. at 233.

     The judge affirmed his prior holdings that Berwind and 
Jesse Branch were not operators of the Elmo No. 5 Mine within 
the meaning of the Mine Act. Id. at 233-34, 241-43. He found 
that the record "contains no suggestion that those who acted 
for Berwind actually were controlling and supervising the 
Elmo No. 5 Mine, or were attempting to do so."  Id. at 234.  
Instead, the judge found that the record established that 
Berwind "had virtually nothing to do with the day-to-day 
operations of the mine."  Id.  He concluded that Berwind's 
financial involvement with the mine was "too far removed" 
from the mine's daily operation to warrant a conclusion that 
Berwind played "a substantial role in controlling and 
supervising the day-to-day operation of the mine, or [had] 
the authority to do so."  Id. The judge also specifically 
rejected the Secretary's position that "Berwind is liable 
solely because it is part of a group that worked together 
to make possible the operation of the [mine]." Id.  In 
addition, the judge concluded that the engineering services 
which Jesse Branch provided to AA&W at the Elmo No. 5 Mine, 
"did not place Jesse Branch in the position of controlling
the day-to-day operation of the mine."  Id. at 242.

     Based on the evidence adduced at the hearing, the judge 
also concluded that Kentucky Berwind was not an operator of 
the mine. Id. at 235-36.  He reaffirmed his prior findings 
that, while Kentucky Berwind owned the minerals rights at the 
mine and leased those rights to Kyber, neither the lease 
provisions nor the report forms prepared by Kentucky Berwind 
indicated that it reserved to itself the right to substantial 
participation in the operation of the mine.  Id. at 234-35; 
17 FMSHRC at 713-15. The judge found that, based on the record 
evidence and the stipulations, Kentucky Berwind employees who 
inspected the mine did so to insure that coal was being 
recovered properly and to check seam heights and tonnage in 
order to confirm royalties, and that Kentucky Berwind never
disagreed with Kyber and AA&W about the propriety of 
discontinuing mining along particular projections.  18 FMSHRC 
at 235.  He found that Kentucky Berwind's authority to impose 
lost coal penalties was not indicative of control or authority 
to control day-to-day mining operations, but rather was 
designed to insure that the coal was mined to the maximum 
extent possible, consistent with the protection of its
proprietary interest in its mineral rights.  Id. at 236.

     Finally, the judge concluded that Kyber was an operator
because of its active participation in the day-to-day 
operation of the mine and its authority to participate in 
the decision-making process regarding the daily development 
of the mine through the projections.  Id. at 240.  The judge 
found that Kyber possessed "bottom line authority" for 
determining the direction of mining, and that it did not give 
AA&W sufficient authority to act independently to change the 
direction of mining within the overall constraints of the 
projections.  Id. at 238-39.  He found that, except for 
conditions relating to safety, AA&W could not change the 
direction of mining without the approval of Kyber. Id. 
at 239.

                               II.

                           Disposition

     A.   The Standard for Determining Operator Status[3]

     The Secretary contends that the judge erred in holding 
that, to be an operator under the Mine Act, an entity must 
exercise or have the authority to exercise "day-to-day" 
control over the overall operations of a mine.  S. Br. at 
29-37.  The Secretary argues that the judge's imposition of 
a requirement of substantial "day-to-day" control is 
inconsistent with the language of the Mine Act, its 
legislative history, the statutory purpose, and the relevant 
case law.  Id.  The Secretary submits, in the alternative, 
that to qualify as an operator under section 3(d) of the Act, 
30 U.S.C. § 802(d), "an entity must exercise or have the 
authority to exercise substantial control over the overall 
operation of the mine."  Id. at 29 (emphasis in original).  
Amici UMWA and USWA agree with the Secretary that the judge 
applied an incorrect standard to determine operator status.
UMWA Br. at 2-4; USWA Br. at 1-3, 5.  The UMWA also asserts 
that the economic control that an owner or lessee exerts 
over a mine may suffice to render it an operator under the 
Mine Act.  UMWA Br. at 5-7.

     Contestants and amici NMA and NCCL argue that the
"substantial day-to-day control" standard applied by the 
judge to resolve the operator status of Berwind and its 
subsidiary corporations is consistent with, and supported 
by, the statutory language, applicable legislative history, 
case law and purposes of the Mine Act.  B. Resp. Br. at 
11-36; NMA/NCCL Br. at 3-14. Contestants and amici NMA, NCCL 
and COA further contend that the Secretary's alternative 
formulation of the standard for determining operator status 
is not entitled to deference since it is unreasonable and 
contrary to the clear intent of Congress.  B. Resp. Br. at 
36-38; NMA/NCCL Br. at 14-17; COA Br. at 16-19. Amicus COA 
further asserts that the Secretary's attempt to impose
liability on owners and lessees of mineral rights through 
the adoption of a new standard for determining operator 
status would amount to a fundamental shift in the Secretary's 
enforcement policy that would threaten the future use of 
contract mining, and thus can only be implemented 
prospectively through legislation or notice-and-comment 
rulemaking.  COA Br. at 4-16, 19-25.

     An operator is defined in section 3(d) as "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[.]"  30 U.S.C. 
§ 802(d).[4] This language, without the independent contractor 
clause, originated with the Federal Coal Mine Health and Safety 
Act of 1969, 30 U.S.C. § 801 et. seq. (1976) (amended 1977) 
("Coal Act").  The Senate Report to the Coal Act states that 
the operation, control, or supervision may be either direct 
or indirect.  S. Rep. No. 91-411, at 44 (1969), reprinted in
Senate Subcommittee on Labor, Committee on Labor and Public 
Welfare, 94th Cong., Part 1, Legislative History of the Federal 
Coal Mine Health and Safety Act of 1969, at 170 (1975)  ("Coal 
Act Legis. Hist.").  Because the forms of participation and 
authority vary from entity to entity, the question of whether 
an entity meets the statutory definition of "operator" must 
be resolved on a case-by-case basis.  When reviewing the 
Secretary's decision to designate an entity as an operator 
under the Act, the Commission will examine whether the entity 
has substantial involvement with the mine.  In answering this 
question, we will not be constrained by the Secretary's 
requirement of "overall control" or the judge's test of 
"day-to-day control."  Instead, we will evaluate the 
participation and involvement of the entity in the mine's
engineering, financial, production, personnel, and health and
safety matters to determine whether that entity qualified as 
an operator under the Act.  See W-P Coal Co., 16 FMSHRC 1407, 
1411 (July 1994).[5] In determining operator status, however, 
the Commission will review and evaluate all of these forms of
participation and involvement in the operation of the mine, 
and no particular factor will be considered controlling.  
Instead, the Commission will weigh the totality of the 
circumstances in determining whether the Secretary could 
designate the entity as an operator under the Mine Act.[6]

     B.   The Status of the Individual Contestants as
Operators[7]

          1.   Kyber

     Kyber asserts that the judge's finding that it is liable 
as an operator of the mine is not supported by substantial 
evidence, and contends that the record demonstrates that it 
lacked the requisite control over operations at the mine or 
the authority to direct the work force employed there. K. Br. 
16-19, 20-25. Kyber argues that its authority to approve 
changes in the direction of mining or deviations from mining 
projections was not indicative of substantial control over 
operations at the mine sufficient to render it an operator 
under the Mine Act.  Id. at 21-25.  Kyber asserts that the 
Secretary relies upon isolated portions of the record and 
deposition testimony not in evidence to support the judge's 
finding that it was an operator of the mine, and ignores other 
evidence and facts found by the judge which indicate that it 
did not exercise or possess sufficient authority to qualify 
as an operator.  K. Reply Br. at 20-31.  In addition, Kyber 
contends that the judge's finding of operator status is at 
odds with Mine Act precedent, which has never held a lessee 
of mineral rights liable as an operator merely because it
had the contractual authority to ensure that the production
operator extracted all minable coal. K. Br. at 25-30.

     The Secretary argues that, although the judge erred by
failing to apply the correct legal standard for determining
Kyber's status as an operator, even under the "day-to-day"
control test applied by the judge substantial evidence 
compels the conclusion that Kyber was the operator of the 
mine since it exercised, or had the authority to exercise, 
substantial control over the mine plan which governed the 
overall mining operation, the mining projections which 
governed the direction of mining, and production-related 
decisions relating to the areas and the manner in which 
mining would be conducted. S. Resp. Br. at 2-3, 32-34. The 
Secretary discounts Kyber's argument that an owner or lessee 
of mineral rights can never be an operator under the Mine 
Act when it has contracted with an independent contractor to 
mine the mineral reserve and given the production-operator 
broad control over its activities.  Id. at 4-14.  Amicus UMWA 
contends that the judge correctly concluded that Kyber is an 
operator because of the substantial control it exercised over 
operations at the mine.  UMWA Br. at 7-9.

     Although we have held that it was error for the judge to
apply the day-to-day control standard to determine whether 
Kyber was an operator of the Elmo No. 5 Mine, we affirm the 
judge's conclusion that Kyber qualified as an operator.  We 
think that implicit in the judge's finding that Kyber 
exercised day-to-day control at the mine is a finding that 
Kyber was substantially involved in the mine's operation. In 
our view, substantial evidence[8] supports this finding and 
that Kyber had "bottom line authority" for determining the 
direction of mining, as well as that it "denied AA&W autonomy 
of action within the overall constraints of the projections."  
18 FMSHRC at 238-39.  Although the mining projections were 
jointly agreed to by AA&W and Kyber, the record indicates 
that Kyber had final authority to approve the projections and 
"to insist upon the projections it wanted[.]" Id. at 237.  
Moreover, the judge found it "clear that Kyber had the 
authority to insist upon the projections it wanted, and that
once the projections were approved by Kyber, AA&W could not
unilaterally modify them."  Id.  Kyber retained ultimate
authority to reject any proposal by AA&W that it believed 
would not lead to the efficient extraction of coal.  Id. at 
237-38. Based upon the foregoing evidence, the judge 
reasonably concluded that "Kyber, not AA&W, had the bottom 
line authority for determining mining direction, and . . . 
AA&W implemented Kyber's directional decisions." Id. at 238.

     This evidence supports the judge's finding that Kyber
retained more control over the direction of mining than the
typical mine owner or lessee.  Id. at 239.  As the judge
explained:

          [T]he owner or lessee of mineral rights has
          the right to protect its asset and to try to
          insure the asset is developed to the maximum
          extent possible consistent with sound safety
          and environmental practices.  Consistent with
          this right, when the owner or lessee
          contracts the mining of its mineral, it is
          permissible for the entity, in conjunction
          with its contract operator, to project an
          overall course of mine development.  However,
          once overall projections have been agreed to,
          the owner or lessee must give leeway to the
          contractor to act independently within the
          general constraints of the projections.  If
          it does not afford the contract operator such
          autonomy, the lessee or mineral right owner
          may retain control sufficient to make it an
          operator for Mine Act purposes.

               In my view, Kyber's relationship with
          AA&W illustrates such a situation.  Except
          for conditions relating to safety, AA&W could
          not change the direction of mining without
          Kyber's approval. . . . When it exercised its
          authority, the choice faced by AA&W was
          either to mine as Kyber wished or to cease
          mining - period (Tr. 402).  In dictating the
          course mining had to take and in having the
          authority to dictate that course Kyber denied
          AA&W the autonomy of action within the
          overall constraints of the projections.  The
          owner or lessee of mineral rights can not
          deny its responsibility for the actions of
          its contract operator, when the contract
          operator is not free to choose the course of
          mining it believes best in this regard.

Id. (emphasis added).  We agree with the judge's conclusion 
that Kyber's active participation and its authority to 
actively participate in the decision-making process regarding 
the daily development of the mine through the projections
were sufficient to render it an operator within the meaning 
of the Act.  Id. at 239-40.

     The judge's conclusion that Kyber was an operator is 
further supported by other evidence of Kyber's substantial 
involvement in decisions concerning the ways in which mining 
was conducted and the quality and quantity of coal produced 
at the mine.  Its contract with AA&W gave Kyber the authority 
to approve and enforce the mine plan for the Elmo No. 5 Mine, 
which governed matters as wide-ranging as the applicable 
ventilation and roof control plans, and the number of 
employees and the types of equipment to be used.  18 FMSHRC 
at 237 n.5; JSF Ex. C ¶ 4.c; Tr. 308-09, 478-79.  These 
considerations, in turn, affected the safety and health of 
miners.  Although Kyber did not regularly exercise its 
authority with respect to the mine plan (18 FMSHRC at 237 
n.5), its contractual authority over the mine plan may be
considered by the Commission as evidence of the actual
relationship between Kyber and AA&W with respect to the 
operation of the mine.  See Bulk Transp. Servs., Inc., 13 
FMSHRC 1354, 1358 n.2 (Sept. 1991).[9]  In addition, the 
involvement of  Kyber officials in taking steps to prevent 
future roof falls as the result of blasting at the neighboring 
Corvette mine[10] provides further evidence that Kyber 
functioned as an operator of the Elmo No. 5 Mine.  The record 
indicates that Kyber officials were instrumental in providing 
notice of the roof fall caused by Corvette's blasting 
activities and in developing the ultimate solution for this 
problem.  17 FMSHRC at 699-700; JSF 301 & Ex. E.[11]

     Commissioner Verheggen rejects our conclusion that
substantial evidence supports the judge's finding that Kyber 
was an operator of the Elmo No. 5 Mine, asserting that, 
"Kyber's involvement in the mine, which did not include any 
involvement in the mine's health and safety  affairs, is 
simply too remote" to render Kyber an operator.  Slip op. 
at 80.  Under the substantial evidence test, however, the 
Commission is limited to searching for "such relevant evidence 
as a reasonable mind might accept as adequate to support [the 
judge's] conclusion" (supra, at n.8), and it may not 
"substitute a competing view of the facts for the view [an] 
ALJ reasonably reached."  Donovan on behalf of Chacon v. 
Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983); see 
also Secretary of Labor v. Keystone Coal Mining Corp., 151 
F.3d 1096, 1104 (D.C. Cir. 1998) ("This sensibly deferential 
standard of review does not allow [a reviewing body] to 
reverse reasonable findings and conclusions, even if [it] 
would have weighed the evidence differently.").  In reaching 
his conclusion that Kyber does not qualify as an operator, 
Commissioner Verheggen appears to violate these precepts by 
proceeding to reweigh the evidence on an issue on which the 
judge's determination is well supported by the record.

     Commissioner Verheggen's competing view of the record
evidence is based in large part on his assertion that Kyber
"played no role in health and safety affairs at the mine."  
Slip op. at 75.  In our view, however, there can be little 
question that Kyber's ultimate control over the direction of 
mining at the Elmo No. 5 Mine, through its final authority 
over the mining projections and any deviations from those 
projections, had a direct and significant bearing on the 
conditions encountered by miners engaged in operations at 
the mine.  The mining projections determine the direction of 
mine development, which significantly impacts on such things 
as roof and rib conditions and ventilation projections. These 
factors directly involve mine safety and the conditions 
experienced by miners in the course of their duties. This 
significant element of control, as well as the other forms
of authority exercised by Kyber at the mine,[12] had a direct
effect on the health and safety of those miners, and could be
reasonably relied upon by the judge as indicative of Kyber's
status as an operator.  Cf. Otis Elevator Co., 11 FMSHRC 1896,
1902 (Oct. 1989) (finding independent contractor to be an
operator under section 3(d) of the Mine Act where its 
employees "had a direct effect on the safety of the mine 
elevators because of their exclusive control over the safety 
of the mine elevators"), aff'd, 921 F.2d 1285 (D.C. Cir. 
1990).

     Despite ample record evidence that Kyber had "bottom 
line authority for determining mining direction" at the Elmo 
No. 5 mine and approving any deviations from the established 
mining projections (18 FMSHRC at 238), Commissioner Verheggen 
focuses on a relatively narrow exception to this authority, 
involving deviations based upon safety concerns, to support 
his view that Kyber does not qualify as an operator.  In our 
view, however, analyzing only one element of Kyber's control 
over operation of the mine does not provide a convincing 
rationale for rejecting the judge's determination that Kyber 
qualified as an operator because safety considerations are 
only one of several potential categories of factors that 
could provide a basis for a proposed deviation from the mining 
projections.  It is undisputed that, with respect to all other 
potential grounds for deviations, Kyber had the ultimate 
approval authority.  JSF 187.  In addition, we conclude that 
the significance of this single limitation on Kyber's 
authority to approve deviations from the projections is not 
nearly as great as our dissenting colleague suggests.[13]
Significantly, there is no evidence of any limitation on 
Kyber's authority to question whether AA&W has in fact raised 
a valid health or safety concern.  Further, once a valid 
health or safety concern was raised by AA&W as a basis for a 
proposed deviation, it would appear that, even absent the 
"no-veto" limitation, Kyber's discretion to cancel the 
proposed change would be essentially illusory, since it would 
amount to suggesting that miners should work under unsafe or 
unhealthy conditions.  We are not prepared to accept any 
suggestion that Kyber can only qualify as an operator if it 
possessed authority to insist on adherence to the projections 
in the face of legitimate countervailing safety or health 
concerns.

     Commissioner Verheggen's assertion that Kyber had 
"virtually no involvement" in financial, production, 
personnel, or safety and health matters at the mine (slip op. 
at 80) is contradicted by the record evidence.  Kyber had 
significant involvement in safety and health at the mine 
through its ultimate control over the mining projections and 
any subsequent deviations from those projections, which 
determined the direction and manner in which coal was mined. 
Kyber also had the authority to approve and enforce the mining 
plan, which encompassed matters including the applicable 
ventilation and roof control plans.  In addition, Kyber paid 
many of the initial costs associated with development of the 
mine, including those incurred for the development of portals 
to the mine, the establishment of a stockpile area, the
construction of a haulage road to serve the mine, the 
development of drainage ponds for mine runoff, the 
acquisition of many of the required federal and state 
environmental permits, and the preparation of a coal reserve 
map.  Kyber also paid its sister corporation, Jesse Branch, 
to perform map drafting and surveying services at the mine. 
Indeed, the record indicates that Kyber engaged in many of 
the same activities at the mine that the Commission found 
dispositive in its decision in W-P Coal:  it "calculated 
mining projections, prepared and updated mine maps [through 
its sister corporation, Jesse Branch], contacted and visited 
the mine frequently to discuss production and other matters, 
. . . [and] participated in an inspection of the mine."
W-P Coal, 16 FMSHRC at 1411.[14]  Thus, there is clearly
substantial evidence in this record to support the judge's
finding that Kyber was an operator.  In reweighing the 
evidence to reach a  different result, Commissioner 
Verheggen focuses on individual elements of Kyber's control 
over operation of the Elmo No. 5 Mine, arguing that each is, 
in itself, insufficient to support an finding that Kyber is 
an operator.  He errs, however, in focusing on separate 
elements of Kyber's control at the mine without considering 
the totality of the circumstances, that is, Kyber's overall 
relationship with the mine, which we find provides 
substantial evidence to support the judge's finding.[15]

          2.   Jesse Branch

               The Secretary contends that, even under the
"day-to-day" control test applied by the judge, the evidence 
establishes that Jesse Branch qualifies as an operator of the 
Elmo No. 5 Mine based upon the engineering services and 
activities it performed there on behalf of, and in conjunction 
with, Kyber.  S. Br. at 50-56.  Amicus UMWA contends that 
Jesse Branch qualifies as an operator of the mine because of 
the engineering services it performed there. UMWA Br. at 8-9. 
Amicus USWA contends that the judge erred in finding that 
Jesse Branch did not have day-to-day control over the mine, 
and therefore was not an operator.  USWA Br. at 4-5.  
Contestants argue that the engineering services performed by 
Jesse Branch at the mine did not give it sufficient control 
over mine operations to warrant finding it to be an operator. 
B. Resp. Br. at 49-50.[16]

     In determining whether Jesse Branch as a separate entity
qualifies as an operator of the Elmo No. 5 Mine, we note that 
the services provided by Jesse Branch were relatively limited 
in scope, consisting primarily of engineering services 
including surveying, spad setting and the preparation of mine 
maps.  The record also discloses, however, that these services 
played an important role in determining the direction of mining 
at the mine, and that Jesse Branch also provided technical 
advice to AA&W in connection with the engineering services it 
provided.

     The parties stipulated that the surveying and spad 
services that Jesse Branch performed at the mine were 
necessary so that AA&W could mine in accordance with the mine 
projections and the requirements of the Mine Act. JSF 160, 
161. In addition, it is undisputed that the mine maps prepared 
by Jesse Branch established the projections that AA&W was 
required to follow when driving entries in the mine, and also 
designated the areas in the mine from which coal could not 
safely be extracted because of the presence of natural gas 
wells.  17 FMSHRC at 693; JSF 166, 167, 178, 179.  These mine 
maps prepared by Jesse Branch were required under federal law,
and were submitted to MSHA on a semi-annual basis to show the 
direction of mining, as part of the ventilation plan, to 
facilitate regular ventilation examinations.  17 FMSHRC at 
692-93; JSF 158, 169.  Thus, the engineering services provided
by Jesse Branch played a key role in determining the areas to 
be mined, and the direction of mining conducted, by AA&W at 
the mine.

     In addition, the judge found that Jesse Branch provided 
AA&W with technical expertise that AA&W lacked regarding 
on-site implementation of the projections, the mine cover, 
and the number of entries it would sustain.  18 FMSHRC at 
241-42.  While conducting surveys at the mine, Jesse Branch 
employees also collected information concerning the dimensions 
of the coal seam, entryways, and coal pillars, and the 
locations of coal pillars, the centers on which mining was 
conducted, stopping lines, conveyor belt lines, and roof 
falls.  This information was recorded in a field book kept 
at Jesse Branch's offices, and was used to draft subsequent 
mine maps.  17 FMSHRC at 693; JSF 156. Jesse Branch also 
inspected the drainage ponds on the surface of the mine on a 
quarterly basis, and prepared inspection results that were 
submitted in an annual certification report to the Kentucky 
Office of Surface Mining Reclamation and Enforcement ("OSM").  
JSF 209.  Employees of Jesse Branch, not AA&W, accompanied 
OSM inspectors on inspections of the surface area of the 
mine, and either Jesse Branch or Kyber corrected any
violations cited as the result of OSM inspections, and paid 
any associated penalties.  JSF 210, 211.

     We conclude that while this evidence shows that Jesse 
Branch played an important role in the operation of the Elmo 
No. 5 Mine, it does not establish substantial involvement in 
the operation of the mine sufficient to support a conclusion 
that Jesse Branch, considered by itself, was an operator of 
the mine.  As the judge observed, the type of surveying and 
engineering work performed by Jesse Branch is frequently 
contracted out because many on-site operators lack the 
capacity to perform such work, and is not typically regarded 
as indicative of substantial control over the operations of 
a mine.  18 FMSHRC at 241.  The judge also noted that there 
was no indication in the record that Jesse Branch denied AA&W 
the autonomy of decision-making within the confines of the 
projections established by Kyber and AA&W, or reserved for
itself the authority for such decision-making. Id. at 242. 
In addition, the record indicates that when Jesse Branch 
provided AA&W with advice regarding the direction of mining 
or geological conditions, it was merely supplying information 
and related opinions that were beyond the technical expertise 
of AA&W. Id. Accordingly, we affirm the judge's conclusion 
that Jesse Branch, considered by itself, was not an operator 
of the mine.[17]

                    3.   Kentucky Berwind

     The Secretary argues that Kentucky Berwind was an 
operator because, as the owner of mineral rights at the mine, 
it retained control and supervision over the manner in which 
coal was mined through its lease agreement with Kyber, even 
if it chose not to continually exercise that control. S. Br. 
at 38-45. In particular, the Secretary relies on periodic 
inspections conducted by Kentucky Berwind employees at the 
Elmo No. 5 Mine, and its involvement in resolving problems 
caused by blasting operations at the neighboring Corvette 
mine, to support its position that Kentucky Berwind was an 
operator.  Id. at 40-45. Amicus UMWA argues that Kentucky 
Berwind maintained and exercised economic control over the 
mine sufficient to render it an operator under the Mine Act. 
UMWA Br. at 6-7.  Amicus USWA contends that the judge erred 
in concluding that Kentucky Berwind was not an operator.  
USWA Br. at 3-5.

     Contestants argue that the inherent authority retained 
by Kentucky Berwind in connection with operations at the mine 
was comparable to that generally retained by coal lessors in 
order to protect their economic interests, and did not suffice 
to render it an operator under the Mine Act.  B. Resp. Br. at 
38-46. Contestants also contend that the quarterly inspections 
conducted by employees of Kentucky Berwind, and its involvement 
in the Corvette incident, are not indicative of the type of 
control or authority over mining operations sufficient to 
render Kentucky Berwind an operator of the mine. Id. at 42-45.

     We affirm the judge's conclusion that Kentucky Berwind 
was not an operator of the mine.  The Secretary's argument 
that Kentucky Berwind is an operator appears to be based 
primarily on the authority it possessed as an owner of mineral 
rights at the Elmo No. 5 Mine, despite the Secretary's 
contention (S. Br. at 33 n.13) that it has not relied on mere 
status as an owner to establish operator status and that an 
entity must exercise or at least possess the authority to
 exercise substantial control over the operation of the mine. 
In our view, the rights retained by Kentucky Berwind pursuant 
to the terms of its lease with Kyber, including the right to 
impose lost coal penalties, do not indicate that Kentucky 
Berwind reserved to itself the authority to have substantial 
involvement in the operation of the mine. The record indicates 
that Kentucky Berwind's authority to impose lost coal penalties 
was rarely, if ever, exercised at the Elmo No. 5 Mine, and was 
not used by Kentucky Berwind as a means of exerting control 
over the operation of the mine.  Rather, these provisions were
 merely used to protect the interests of Kentucky Berwind, as 
owner of the mine, by insuring that the coal was mined to the 
maximum extent possible.

     To support her argument that Kentucky Berwind is an 
operator because of the authority it possessed as an owner 
and lessor, the Secretary cites (S. Br. at 33) language from 
the Third Circuit's Elliot decision that "where the lessor 
and lessee are closely affiliated companies, . . . existence 
of a power to control the lessee should be presumed." 17 F.3d 
at 620.  This statement, in dicta, was made in the context of 
determining whether the lessor in that case was a "responsible 
operator" liable for benefits under the Black Lung Benefits 
Act, 30 U.S.C. §§ 901-945 ("BLBA"), and its implementing
regulations, which were specifically directed towards 
preventing operators from manipulating their corporate form 
to avoid liability for benefits to employees employed on or 
after June 30, 1973.  As the Elliot court noted, the 
legislative history of the 1977 amendments to the BLBA 
indicates that "Congress intended to prevent businesses from 
escaping liability for black lung benefits by a change of 
corporate form or identity that had no substantial economic 
effect on the power to control the exploitation of the mineral 
resources."  17 F.3d at 631.  Thus, the quoted language from 
Elliot was based upon Congress' express intent to impose 
continuing liability on a former mine operator for BLBA 
benefits to that operator's former employees even though
it may have attempted to evade those responsibilities by 
a corporate restructuring in which it substituted an 
affiliated company as its lessee to continue the actual 
operation of the mine, while continuing to profit from mine 
operations. This reasoning is not applicable to the pertinent 
lease arrangement between Kentucky Berwind and Kyber, who, 
as shown above, dealt with each other at "arm's length."  
Unlike the lessor involved in Elliot, neither Kentucky 
Berwind nor any of its affiliates ever previously operated 
the mine or employed AA&W's employees, and there was no 
allegation that any of those entities sought, through the 
lease agreement, to avoid any legal obligations.

     In any event, the quoted language from Elliot speaks 
only of a "presumption" of a lessor's power to control the 
lessee.  In determining whether Kentucky Berwind is an 
operator, the key issue is the extent of its involvement in 
the operation of the mine, and not the activities of Kyber, 
its affiliated lessee. Moreover, any presumption of control 
over the lessee could be overcome by evidence, of the type 
elicited in this case, that the lessor did not possess actual 
authority to control the lessee or the operations of the 
mine.

     In addition, it does not appear that Kentucky Berwind
engaged in the type of activities  that are indicative of
substantial involvement in the operation, supervision or 
control of the mine.  Rather, the record supports the judge's 
findings that the inspections of the mine by Kentucky Berwind 
personnel, the only regular contact by Kentucky Berwind with 
the mine, were essentially pro forma operations designed to 
insure that the coal was being recovered properly and to 
check seam heights and tonnages and confirm royalties; that 
Kentucky Berwind never disagreed with Kyber and AA&W about 
the propriety of discontinuing mining in certain areas; and 
that Kentucky Berwind had little or no input into the 
formulation of projections or other decisions regarding mining 
operations.  18 FMSHRC at 235-36.  As the judge noted, there 
was no showing that the report forms prepared by Kentucky 
Berwind employees who visited the mine were linked to any 
substantial participation in the operation of the mine. Id. 
at 235.  In addition, based upon the lack of supporting 
evidence of financial control and the stipulation of the 
parties that Kentucky Berwind had no financial dealings with
AA&W, the judge's conclusion that Kentucky Berwind did not 
exert sufficient financial control over operations at the 
mine to qualify as an operator is supported by substantial 
evidence.

     Nor do the actions of Kentucky Berwind in response to a 
roof fall at the Elmo No. 5 Mine that resulted from blasting
at the neighboring Corvette mine (see discussion supra, at 13 
& n.11) warrant a finding that it was an operator. While the 
undisputed evidence establishes that Kentucky Berwind 
intervened to insure that operations at the Corvette mine did 
not interfere with the operation of the Elmo No. 5 Mine, there 
is no evidence that it directed AA&W to make any changes with 
respect to its operation of the mine.  As the judge concluded, 
"it was only natural that Kentucky Berwind, as the owner of 
the coal reserves mined by both AA&W and Corvette, would have 
an interest in trying to assist both operators so that they 
did not interfere with one anothers' operations."  17 FMSHRC 
at 715.  While we rely on the involvement of Kyber officials 
in the Corvette incident as additional evidence of Kyber's 
operator status (supra, at 12-13), we do not believe that the 
involvement of Kentucky Berwind in these limited circumstances, 
in itself, required the judge to conclude that Kentucky 
Berwind was an operator, in absence of other evidence of its 
substantial involvement in the operations of the mine.

          4.   Berwind

     The Secretary argues that Berwind qualifies as an 
operator because it had the power to control and supervise 
operations at the mine as the result of the control it
exercised over its three subsidiary corporations - Kentucky 
Berwind, Kyber, and Jesse Branch.  S. Br. at 45-49.  Amicus 
UMWA argues that Berwind qualifies as an operator on the 
basis of the economic control it exercised over operations 
at the mine.  UMWA at 6-7.  Amicus USWA asserts that the 
judge erred in concluding that Berwind was not an operator 
of the mine because of the business and economic control it 
exercised over operations at the mine, through Kyber. USWA 
Br. at 3-4.

     Contestants argue the judge correctly held that Berwind 
was not an operator of the Elmo No. 5 Mine based on his 
finding that Berwind had virtually nothing to do with the 
day-to-day operations of the mine.  B. Resp. Br. at 46.  
They argue that the Secretary erroneously attempts to rely on 
the control Berwind exerted over its subsidiary corporations 
as indicative of operator status, since she has failed to 
establish any of the necessary prerequisites for piercing 
the corporate veil and disregarding Berwind's status as a 
separate corporation.  Id. at 46-49.

     We affirm the judge's determination that Berwind was 
not an operator of the mine.  We conclude that substantial 
evidence supports the judge's finding that Berwind "had 
virtually nothing to do with the . . . operations of the 
mine."  18 FMSHRC at 234. The Secretary does not dispute 
this finding, but argues that Berwind should be found to be 
an operator because of the control it exercised over its 
three wholly-owned subsidiaries - Jesse Branch, Kentucky 
Berwind and Kyber - which, in turn, controlled various 
aspects of operations at the mine.  This same argument could 
be applied to virtually any parent corporation, however, and, 
in our view, amounts to an attempt to "bootstrap" Berwind's
operator status based on the finding that Kyber is an 
operator.

     The stipulated evidence does indicate that Berwind 
allocated funds to its subsidiaries to meet their budgets,
retained the authority to approve expenditures by the 
subsidiaries in excess of their budgets, and approved the 
expenditure of funds by Kyber to do face-up work prior to 
the opening of the Elmo No. 5 Mine. Id. at 212, 234.  In our 
view, however, the judge correctly concluded that Berwind's 
financial involvement with the mine was "too far removed" 
from the actual operation of the mine to warrant a finding 
that Berwind is an operator.  Id. at 234. Likewise, the 
overlap between the officers of Berwind and those of its 
subsidiaries, and the authority that Berwind had to approve 
the election and appointment of top level officers and
management officials of its subsidiaries, does not in itself
constitute substantial involvement in the operation of the 
mine. We agree with the judge that the record contains "no 
suggestion that those who acted for Berwind actually were 
controlling and supervising the Elmo No. 5 Mine, or were 
attempting to do so." Id.  Nor is there any evidence that 
Berwind used the common officers it shared with its 
subsidiaries, or its authority to name officials of the 
subsidiaries, as a means by which to exert control over the 
operations of the mine.

     In our view, the judge also correctly concluded that the 
Secretary failed to establish that any of the subsidiaries 
did not operate independently of Berwind, or the existence of
any other grounds for disregarding the corporate distinctions 
between Berwind and its subsidiaries.  Id.; 17 FMSHRC at 715. 
In the absence of any such evidence, or any showing that 
Berwind had substantial involvement in the operation of the 
mine, we find no basis for disturbing the judge's finding that 
Berwind was not an operator.


     C.   The Secretary's Unitary Operator Theory[18]

     Having determined that not all of the individual 
entities named by the Secretary are operators within the 
meaning of section 3(d) of the Mine Act, we address the 
Secretary's alternative argument that Berwind and its three 
subsidiary corporations constituted a "unitary operator" 
under the Mine Act because together they allegedly controlled 
all aspects of mining at the Elmo No. 5 Mine.[19]

          1.   The Secretary's Interpretation of the Mine Act

     Section 3(d) of the Mine Act defines "operator" as 
including "any . . . person who operates, controls, or 
supervises a coal or other mine."  30 U.S.C. § 802(d).  
Section 3(f) defines a "person" as "any individual, 
partnership, association, corporation, firm, subsidiary of 
a corporation, or other organization[.]" 30 U.S.C. § 802(f). 
The Secretary contends that the judge erred by not 
considering the operator status of Berwind and its three 
subsidiary corporations under a unitary operator theory 
because that theory is consistent with the language and 
underlying purposes of the Mine Act.  S. Br. at 12-22. In 
particular, the Secretary relies on the definition of
"person" in section 3(f) of the Act, which appears in the
definition of the term "operator" in section 3(d), and 
expressly includes the terms "association" and "other 
organization."  She asserts that these two provisions, taken 
together, indicate that Congress envisioned holding multiple 
entities liable as a unitary operator if together they 
constitute an "association" or "other organization" that 
"operates, controls, or supervises a coal or other mine."  
Id. at 12-13.  The Secretary also contends that the grounds 
offered by the judge for rejecting the unitary operator
interpretation in this case are irrelevant and inconsistent 
with the purposes of the Mine Act.  Id. at 22-26.

     Contestants and amici NMA and NCCL argue that the
Secretary's assertion of a unitary operator theory is
inconsistent with, and unprecedented under, the Mine Act, 
and would undermine legitimate business structures and 
commercial relationships that have developed with respect 
to the mining of coal.  B. Resp. Br. at 52-59; NMA/NCCL 
Br. at 2-3, 17.

     The Secretary's unitary operator theory is based upon 
her construction of the definition of the statutory terms 
"operator" and "person" in sections 3(d) and 3(f) of the 
Mine Act, respectively.  The first inquiry in statutory 
construction is "whether Congress has directly spoken to the 
precise question in issue."  Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 842 (1984); 
Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If 
a statute is clear and unambiguous, effect must be given to 
its language.  Chevron, 467 U.S. at 842-43.  Accord Local 
Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 
1990).[20]  If, however, the statute is ambiguous or silent 
on a point in question, a second inquiry, commonly referred 
to as a "Chevron II" analysis, is required to determine 
whether an agency's interpretation of a statute is a 
reasonable one.  See Chevron, 467 U.S. at 843-44; Thunder 
Basin, 18 FMSHRC at 584 n.2; Keystone, 16 FMSHRC at 13.  
Deference is accorded to "an agency's interpretation of 
the statute it is charged with administering when that 
interpretation is reasonable."  Energy West Mining Co. v. 
FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 
467 U.S. at 844). The agency's interpretation of the statute 
is entitled to affirmance as long as that interpretation is 
one of the permissible interpretations the agency could have 
selected.  Chevron, 467 U.S. at 843; Joy Technologies, Inc. 
v. Secretary of Labor, 99 F.3d 991, 995 (10th Cir. 1996), 
cert. denied, 520 U.S. 1209 (1997).  See also Thunder Basin 
Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th Cir. 1995).

     The Mine Act does not define the terms "association" 
and "organization."  The use of the terms "association" and
"organization" in the statutory definition of "person," and 
thus, indirectly, in the definition of "operator," therefore, 
sheds little light on whether Congress intended that multiple 
related entities could be held liable as a unitary operator. 
In the absence of an express definition or an indication that 
the drafters intended a technical usage, the Commission has 
relied on the ordinary meaning of the word to be construed.  
Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd mem., 
111 F.3d 963 (D.C. Cir. 1997).  See also Walker Stone Co. v. 
Secretary of Labor, 156 F.3d 1976, 1081 (10th Cir. 1998) 
("the Commission appropriately considered the plain 
meaning of [the] words as indicated by their dictionary 
definitions.").  The Secretary relies on the definitions of 
these terms in the American Heritage Dictionary of the 
English Language 80, 926 (New College ed. 1976).  S. Br. at 
13.  That source defines the term "association" as "an 
organized body of people who have some interest, activity,
or purpose in common."  Id. at 80.  An "organization" is 
defined as "[a] number of persons or groups having specific
responsibilities and united for some purpose or work."  Id.
at 926.

     These definitions of the terms "association" and
"organization" all use the terms "persons" or "people."  
While the term "people" is more commonly understood to refer 
to human beings, i.e., natural persons, the term "person" is 
usually defined broadly to also include other types of legal 
entities. For instance, Webster's Third New International 
Dictionary defines "person" as "a human being, a body of 
persons, or a corporation, partnership, or other legal 
entity that is recognized by law as the subject of rights and 
duties." Webster's Third New Int'l Dictionary (Unabridged) 
1686 (1986). The term is also defined, for legal purposes, as 
"a human being (natural person) or a group of human beings, a 
corporation, a partnership, an estate, or other legal entity 
(artificial person or juristic person) recognized by law as 
having rights and duties."  Random House Dictionary of the 
English Language (Unabridged) 1445 (2d. ed. 1987) (emphasis 
in original). See also Black's Law Dictionary 1162 (7th ed. 
1999).

     These definitions indicate that the terms "association" 
and "organization," as well as "person" and "people," are 
open to various interpretations that may or may not include 
Berwind and its three subsidiaries.  Those companies would 
appear to qualify as "persons" if that term is interpreted 
broadly to include entities that are not human beings.  It 
could be argued, however, that they do not fall within the 
commonly understood meaning of the term "people," as used 
in certain definitions of the terms "association" and 
"organization."  Moreover, resolution of the issue whether 
Berwind and its three subsidiaries otherwise qualify as an 
"association" or "organization" depends largely on which 
definition of those terms is applied and how it is 
interpreted.  For instance, utilizing the American Heritage 
and Webster's Third definitions of the term "association," 
it could be argued that the companies have some "interest, 
activity, or purpose in common" or "common interest" based 
on their financial ties and their common involvement in the 
mining industry. On the other hand, if the quoted language 
is interpreted more narrowly, it could be argued that they 
do not satisfy this definition of the term "association" 
since they are all separate corporate entities that operate 
within different sectors of the mining industry.  The same 
holds true in analyzing whether the four companies can be 
said to be "united for some purpose or work" or "organized 
for some end or work" within the meaning of the American 
Heritage and Random House definitions of the term 
"organization."  Thus, Berwind and its three subsidiaries 
could be considered "united" for the purpose of conducting 
business at various levels of the mining industry and thereby 
generating profits for Berwind, the parent corporation.  
Conversely, applying a more restrictive interpretation to 
this language, it is possible to conclude that these are 
four independent corporate entities that are not "united" in 
any formal legal sense or "organized" to achieve the same 
end.  The other definitions of the terms "association" and 
"organization" are likewise open to different, conflicting 
interpretations.

     Because the meaning of the terms "association" and
"organization" as used in the statutory definitions of the 
term "person" and "operator" is open to alternative 
interpretations, as reflected in the dictionary definitions, 
we conclude that they are ambiguous.  See National R.R. 
Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418-19 
(1992); 2A Norman J. Singer, Sutherland Statutory Construction 
§ 45.02, at 6 (5th ed. 1992) ("Ambiguity exists when a statute 
is capable of being understood by reasonably well-informed 
persons in two or more different senses."); Ehlert v. United 
States, 402 U.S. 99, 105 (1971).  In Walker Stone, the Tenth 
Circuit found a regulatory safety standard to be inherently 
ambiguous where neither of two conflicting interpretations 
adopted by the Commission and its administrative law judge 
was "either clearly required or clearly prohibited by the 
language of the . . . standard." 156 F.3d at 1081. Similarly, 
in this case, the pertinent statutory terms must be regarded 
as ambiguous because the dictionary definitions do not 
conclusively establish that the Secretary's interpretation
of these statutory terms is either required or prohibited.

     Moreover, the legislative history of the Coal Act of 1969,
in which these definitional sections were originally adopted, 
is silent regarding Congress' intention in including the 
terms "association" and "organization."  These terms were 
subsequently carried over into the Mine Act in 1977, without 
any further explanation from Congress as to their intended 
meaning.

     Accordingly, we conclude that the statutory language on 
the question whether more than one entity may constitute a 
single operator is far from clear, and that Congress has not 
"directly spoken to the precise question at issue." Chevron, 
467 U.S. at 842. We therefore examine whether the Secretary's 
unitary operator interpretation is a permissible construction 
of the Mine Act that is entitled to deference.

     The Secretary elicits support for her unitary operator
interpretation of the Mine Act by relying on cases that have 
held multiple entities liable as a "single employer" or 
"single enterprise" under other statutes, including the 
National Labor Relations Act "("NLRA"), 29 U.S.C. § 141 
et seq., and Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq.  S. Br. at 13-16, 24.  
Although these two statutes are more directly concerned 
with the employment relationship itself, and forms of 
discrimination that can occur thereunder, the key statutory 
provisions defining the terms "employer" and "person" are 
very similar to those contained in the Mine Act.[21]

     In a number of cases, we have looked for guidance to 
case law interpreting similar provisions of the NLRA, as well 
as Title VII and other employment statutes, in resolving 
questions concerning the proper construction of provisions of 
the Mine Act. See Swift v. Consolidation Coal Co., 16 FMSHRC 
201, 206 (Feb. 1994) (standard for showing facial 
discrimination); Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 
2542-45 (Dec. 1990) (legality of operator's policy of paying 
employees who testify as witnesses on its behalf, but not 
paying employee for time spent testifying as another party's 
witness); Local Union 2274, UMWA v. Clinchfield Coal Co., 
10 FMSHRC 1493, 1501 n.6, 1504-05 (Nov. 1988) (appropriate 
rate of interest on backpay awards), aff'd sub nom. 
Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773 (D.C. Cir.
1990); Metric Constructors, Inc., 6 FMSHRC 226, 231-33 (Feb.
1984) (mitigation defense to backpay award), aff'd, 766 F.2d 
469 (11th Cir. 1985).  In Delisio, the Commission noted that 
it "has recognized in several contexts that . . . cases 
decided under the NLRA - upon which much of the Mine Act's 
antiretaliation provisions are modeled - provide guidance on 
resolution of discrimination issues under the Mine Act."  
12 FMSHRC at 2542-43 (citing Metric Constructors, 6 FMSHRC 
at 231). Applying a similar rationale, we believe that cases 
applying the "single employer" doctrine under the NLRA and 
Title VII may be properly considered in determining whether 
the unitary operator theory now advanced by the Secretary 
constitutes a reasonable interpretation of comparable 
provisions of the Mine Act.[22]

     A "single employer" doctrine has been developed to 
determine when separate entities should be treated as a 
single employer by the National Labor Relations Board 
("NLRB") for purposes of enforcing the provisions of the 
NLRA.  This doctrine, which has been approved by the Supreme
Court, provides:

          [I]n determining the relevant employer, the
          [NLRB] considers several nominally separate
          business entities to be a single employer
          where they comprise an integrated enterprise.
          The controlling criteria, set out and
          elaborated in [NLRB] decisions, are
          interrelation of operations, common
          management, centralized control of labor
          relations and common ownership.

Radio & Television Broadcast Technicians Local Union 1264 v.
Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256 (1965) 
(per curiam) (citations omitted).  See also Lihli Fashions 
Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir. 1996); Esmark, Inc. 
v. NLRB, 887 F.2d 739, 753 (7th Cir. 1989); NLRB v. Al Bryant, 
Inc., 711 F.2d 543, 550-53 (3d Cir. 1983), cert. denied, 464 
U.S. 1039 (1984); Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 
24-26 (1st Cir.) ("the fundamental inquiry is whether there 
exists overall control of critical matters at the policy 
level"), cert. denied, 464 U.S. 892 (1983).  To demonstrate
single employer status, not every factor need be present, and 
no particular factor is controlling. Lihli Fashions Corp., 
80 F.3d at 747.  "[I]nstead, the [NLRB] must weigh the 
totality of the circumstances and determine whether the parent 
exercised such pervasive control of the subsidiary at the 
policymaking level that the purposes of the labor laws are 
served by treating the two entities as one." Esmark, 887 F.2d 
at 753.  See also Al Bryant, 711 F.2d at 551 ("single employer
status depends on all the circumstances of the case and is 
characterized by absence of an `arm's length relationship 
found among unintegrated companies'") (quoting Local 627, 
Int'l Union of Operating Eng'rs v. NLRB, 518 F.2d 1040,
1045-46 (D.C. Cir. 1975), aff'd on this issue per curiam sub 
nom. South Prairie Constr. Co. v. Local 627, Int'l Union of 
Operating Eng'rs, 425 U.S. 800 (1976)).  Proof of subterfuge, 
or an intent to avoid legal obligations, is not necessary to 
establish single employer status.  Al Bryant, 711 F.2d at 
552.[23]

     The four-part single employer test developed under the 
NLRA has also been applied to determine whether two or more 
companies should be treated as one entity for purposes of 
assessing liability for Title VII violations.  See, e.g., 
Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d 
Cir. 1995); McKenzie v. Davenport-Harris Funeral Home, 834 
F.2d 930, 933 (11th Cir. 1987); Armbruster v. Quinn, 711 F.2d 
1332, 1337 (6th Cir. 1983).  But see Papa v. Katy Indus., 
Inc., 166 F.3d 937, 940-42 (7th Cir. 1999) (questioning 
continued applicability of four-part test in Title VII 
context), cert. denied, 68 U.S.L.W. 3137 (U.S. Nov. 29, 1999) 
(No. 99-284).  "The showing required to warrant a finding of 
single employer status for Title VII purposes has been 
described as `highly integrated with respect to ownership 
and operations.'"   McKenzie, 834 F.2d at 933 (quoting Fike 
v. Gold Kist, Inc., 514 F. Supp. 722, 726 (N.D. Ala.), aff'd
mem., 664 F.2d 295 (11th Cir. 1981)).

     The single employer doctrine has been applied to hold 
a parent corporation liable for the statutory obligations of 
its subsidiary[24] and to hold a sister corporation liable 
for the obligations of an affiliate.[25]  The doctrine 
represents an exception to the general principle of "[t]he 
insulation of a stockholder from the debts and obligations 
of his corporation. . . ." NLRB v. Deena Artware, Inc., 361 
U.S. 398, 402-03 (1960). See also Watson v. Gulf & Western 
Indus., 650 F.2d 990, 993 (9th Cir. 1981) (absent special 
circumstances, parent is not responsible for subsidiary's 
Title VII violation).  As the Supreme Court also noted in
Deena Artware, 361 U.S. at 403-04, however, there may be 
variety of situations in which it is appropriate to hold a 
corporation liable for the sins of its subsidiary or 
affiliate.

     We believe that this well-developed body of case law
interpreting similar statutory language to create a single
employer doctrine under the NLRA and Title VII provides 
support for the Secretary's interpretation of the Mine Act 
as permitting the application of a similar unitary operator 
theory.  The terms "association" and "organization" in 
section 3(f) of the Mine Act are not so inherently 
restrictive as to preclude the interpretation applied to them 
by the Secretary, and there is nothing in the legislative 
history that detracts from this construction of the statutory 
language.  Indeed, the legislative history of the Coal Act 
indicates that Congress intended that "[t]he definition of 
an `operator' . . . be as broad as possible,"[26] consistent 
with the established principle that provisions of the Mine 
Act pertaining to statutory coverage are entitled to a very
expansive interpretation.  See United Energy Servs., Inc. v.
 MSHA, 35 F.3d 971, 975 (4th Cir. 1994); Pennsylvania Elec. 
Co. v. FMSHRC, 969 F.2d 1501, 1503 (3d Cir. 1992); Donovan v. 
Carolina Stalite Co., 734 F.2d 1547, 1551-55 (D.C. Cir. 1984) 
(all interpreting the term "mine" in section 3(h)(1), 30 U.S.C. 
§ 802(h)(1)).  This is comparable to the liberal construction 
that courts have applied in interpreting the NLRA, Title VII, 
and the provisions relating to the scope of their coverage.  
See, e.g., Armbruster, 711 F.2d at 1336 ("To effectuate its 
purpose of eradicating the evils of employment discrimination, 
Title VII should be given a liberal construction. The impact 
of this construction is the broad interpretation given to the 
employer and employee provisions.") (citations omitted).
Viewed in this context, we consider the Secretary's unitary
operator theory to be a gap-filling measure designed to flesh 
out the definition of an "operator" under the Mine Act. It 
is entitled to deference because it is consistent with the 
purposes and policies of the Act.[27]

     The support that these NLRA and Title VII cases provide 
for the Secretary's interpretation of the Mine Act is enhanced 
by their similar definitions of the term "person,"  which is
incorporated in other key definitions ("operator" in the Mine
Act, "employer" in the NLRA and Title VII).  The following
observation by the Sixth Circuit in Armbruster, in approving 
the application of the single employer test developed under 
the NLRA in Title VII cases, is also applicable in a Mine Act 
context:

          Since it is clear that the framers of Title
          VII used the NLRA as a model, we find the
          similarity in language of the Acts indicative
          of a willingness to allow the broad
          construction of the NLRA to provide guidance
          in the determination of whether, under Title
          VII, two companies shall be deemed to have
          substantial identity and treated as a single
          employer.

711 F.2d at 1336 (citations omitted).

     We find the reasons offered by the judge for rejecting 
the Secretary's unitary operator theory inconsistent with a 
Chevron II analysis.  The judge stated that "[p]arts of the 
industry have functioned in this way for years and . . . the
Secretary has never had a policy of citing all corporate 
entities involved in the operation of a mine for the 
production operator's violations."  18 FMSHRC at 233 
(emphasis in original).  The judge further found that the 
absence of such a policy "raises questions about the validity 
and wisdom of a `unitary' approach to enforcement."  Id.  As 
the judge himself recognized, however, the mere fact that the 
Secretary has not previously cited operators based on this 
theory does not estop her from relying on the unitary operator 
theory here.  See Sunny Ridge Mining Co., 19 FMSHRC 254,
 267-68 (Feb. 1997) (equitable estoppel does not generally 
operate against the Secretary) (citing King Knob Coal Co., 
3 FMSHRC 1417, 1421-22 (June 1981)).  The issue before the
Commission, in evaluating an agency's interpretation of the
statute it is charged with administering, is whether that
interpretation is a permissible reading of the statute.  The
D.C. Circuit has observed:  "As a court of review . . . we 
are not positioned to choose from plausible readings the 
interpretation we think best.  Rather, our task is to inquire 
whether the [agency's] reading is sufficiently plausible and 
reasonable to stand as the governing law, absent alteration 
by Congress." American Fed'n of Gov't Employees v. FLRA, 778 
F.2d 850, 856 (D.C. Cir. 1985) (alteration in original).

       The judge also reasoned that a "unitary entity" theory 
of operator status could "fly in the face of the entities' 
corporate rights to be treated separately and . . . be used to 
extend jurisdiction without a logical limit."  18 FMSHRC at 
233. But while we must not ignore the corporate forms adopted 
by the entities before us, neither are we required to exalt 
these forms over the substance of interrelated and integrated 
operations.  As the Commission has previously observed, in 
resolving the issue of whether a facility was a "mine" within 
the meaning of section 3(h) of the Mine Act, 30 U.S.C. 
§ 802(h):  "the operations taking  place at a single site must 
be viewed as a collective whole. Otherwise, facilities could 
avoid Mine Act coverage simply by adopting separate business 
identities along functional lines, with each performing only 
some part of what, in reality, is one operation."  Mineral 
Coal Sales, Inc., 7 FMSHRC 615, 621 (May 1985).[28] Courts 
applying the single employer doctrine have likewise recognized 
that "the separation of parent and subsidiary is not absolute. 
. . . There may be a variety of situations in which it is 
appropriate to hold a parent corporation liable for the sins 
of its subsidiary." Esmark, 887 F.2d at 753; see also
Armbruster, 711 F.2d at 1337 (high degree of interrelatedness
sufficient to support single employer finding justifies
"departure from the `normal' separate existence between
entities").

     Despite Commissioner Verheggen's assertions to the 
contrary, the single employer test we adopt today, which 
applies only to entities that have in fact ceased functioning 
as separate operations, is not a departure from the "common 
law of corporations" (slip op. at 85), but rather is entirely 
consistent with well established principles of corporation 
law.[29]  See Package Serv. Co., 113 F.3d at 847 ("Corporate 
law recognizes situations in which it is appropriate to 
`pierce the veil' of separate affiliates").  For instance, it 
is well recognized that under the "alter ego" theory of 
corporation law,[30] a parent corporation may be held liable 
for the obligations of its subsidiary where "there is such 
unity of interest and ownership that the individuality or 
separateness of the two corporations has ceased."  18 Am. 
Jur. 2d, Corporations § 56, at 861-62 (1985).  Similarly, 
"the so-called `identity rule'" provides:

          if there is such a unity of interest and
          ownership that the independence of the
          corporation has in effect ceased or had never
          begun, an adherence to the fiction of
          separate identity would serve only to defeat
          justice and equity by permitting the economic
          entity to escape liability arising out of an
          operation conducted by one corporation for
          the benefit of the whole enterprise.

Id. at 862 (citations omitted); accord 1 William Meade 
Fletcher et al., Fletcher Cyclopedia of the Law of Private 
Corporations § 43, 1999 Cum. Supp. at 20 (rev. perm. ed. 
1999).  See also 1 Fletcher, Cyclopedia Corporations § 43, 
at 719 ("Many cases disregard the corporate entity where it 
is so organized and controlled, and its affairs are so 
conducted, that it is merely  an instrumentality, agency, 
conduit, or adjunct of another corporation.").[31]  There is 
no requirement for a showing of fraud in determining whether 
two separate corporations may be treated as a single entity 
under traditional corporation law alter ego analysis.  
1 Fletcher, Cyclopedia Corporations § 43.60, at 737.  See 
also authorities cited supra.

     In sum, we conclude that the Secretary's interpretation 
of the Mine Act as permitting multiple entities to be 
considered an operator is a reasonable reading of the statute
and therefore  entitled to deference.

          2. The Test for Determining Unitary Operator Status

     Having upheld as reasonable the Secretary's interpretation
of the Mine Act as permitting the designation of two or more
related entities as a single operator, we must also define the
elements of an appropriate test to determine when related
entities may be found to constitute a single operator.  The
Secretary appears to propose an approach based on the single
employer doctrine developed under the NLRA and Title VII and 
the common enterprise standard developed under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.  See S. Br. at
15-16.  We believe that the most appropriate standard for
determining whether two or more related entities constitute a
unitary operator under the Mine Act is that applied in
determining whether two or more entities constitute a single
employer under the similar statutory language of the NLRA and
Title VII,[32] with one modification.

     As indicated above, the factors evaluated to determine
whether entities are considered a single employer for purposes 
of the NLRA and Title VII are:  (1) interrelation of operations,
(2) common management, (3) centralized control of labor
relations, and (4) common ownership.  In our view, this well-
established test, which has been universally upheld and approved
by the federal courts, should be used as a model for determining
whether two or more entities should be considered a single
operator under the Mine Act.  We adopt one modification to this
test, however, based on the Mine Act's primary concern with the
protection of health and safety, rather than labor relations.[33]
Based on this focus of the Mine Act, we conclude that centralized
control over mine health and safety, rather than "centralized
control of labor relations," should be the third element of the
Mine Act unitary operator test.

     Accordingly, we will consider the following factors in
determining whether entities will be treated as a unitary
operator for purposes of the Mine Act:  (1) interrelation of
operations, (2) common management, (3) centralized control 
over mine health and safety, and (4) common ownership.  To 
demonstrate unitary operator status, not every factor need be 
present, and no particular factor is controlling.  Instead, 
we will weigh the totality of the circumstances to determine 
whether one corporate entity exercised such pervasive control 
over the other that the two entities should be treated as one. 
 See Lihli Fashions, 80 F.3d at 747 (applying single employer 
test developed under NLRA); Esmark, 887 F.2d at 753 (same); 
Al Bryant, 711 F.2d at 551 (single employer status depends on 
all the circumstances of the case).

     We find no merit in Commissioner Riley's suggestion 
(slip op. at 65-66) that it is somehow inappropriate for a 
Commission majority to fashion its own unitary operator test, 
derived largely from principles set forth by the Secretary in 
her briefs. See S. Br. at 15-16.  Having concluded, through 
application of Chevron II analysis, that the Secretary's 
interpretation of the Mine Act to support a unitary operator 
theory of liability was reasonable, and therefore entitled to 
our deference, we are not bound to defer to any specific test 
proposed by the Secretary for determining unitary operator 
status.  It is hardly open to question that this Commission 
has the authority to interpret the Mine Act and adopt a 
specific test or standards for adjudicating charges arising 
thereunder.  See, e.g., Mathies Coal Co., 6 FMSHRC 1, 3-4 
(Jan. 1984) (adopting four-part test for determining whether 
a violation is "significant and substantial" under section 
104(d) of the Mine Act); Kenny Richardson, 3 FMSHRC  8, 16 
(Jan. 1981) (adopting standard for determining liability
under section 110(c)), aff'd on other grounds, 689 F.2d 632 
(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983).

     We are also not persuaded by our dissenting colleague's
criticisms of the unitary operator standard we adopt today.
Despite Commissioner Riley's characterization of this test  
(slip op. at 68-69), it is apparent that the essence of the 
test we adopt has been universally accepted and consistently 
applied by federal courts for over 20 years to determine 
whether one or more related entities should be treated as a 
single employer under the NLRA and Title VII. Nor do we find
any merit to Commissioner Riley's suggestion that our test 
is overly broad because it could render liable as an operator 
a labor organization that represents miners employed at a 
mine, such as, in this case, the UMWA.  Slip op. at 68.  
Although, applying a liberal interpretation, a labor
organization that represents miners at a particular mine 
might be found, in some sense, to have a certain degree of 
control over health and safety at that location, we seriously 
question whether such an organization would meet any of the 
other three elements of the unitary operator test we adopt 
today.[34]

     In dissenting from our application of a unitary operator
test in this case to determine when two or more related 
entities may be treated as a single operator for purposes of 
the Mine Act, Commissioner Riley applies an explicitly 
result-oriented approach and accuses the Secretary of doing 
the same.  He argues that because the Commission has not 
concluded in this case that Berwind and its three subsidiaries 
qualify as a single operator (see discussion infra, at 35), as 
the Secretary had urged, it follows that the test we have 
adopted for resolving that issue is unnecessary and 
unwarranted under the circumstances presented in this case.  
Slip op. at 66, 68.  We note, however, that in Emery Mining 
Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission's seminal
case on unwarrantable failure, we adopted the identical 
approach: we announced a new test pursuant to our 
interpretation of the Mine Act, and in applying it found no 
unwarrantable failure.  Id. at 2004.

     Commissioner Riley's argument blurs the distinction 
between three independent issues with which we must come to 
grips, namely:  whether a unitary operator theory is a 
reasonable construction of the Mine Act; if so, identifying 
the elements of an appropriate test to determine when related 
entities may be found to constitute a single operator under 
the Mine Act; and, finally, applying such a test to the four 
entities involved in this proceeding.  We fail to perceive 
how our disagreement with the Secretary on the ultimate 
results of applying our unitary operator test to these four 
related entities undermines the validity of our position on 
the first two issues.[35]

          3.   Application of the Unitary Operator Test

               a.   Berwind and Its Three Subsidiaries

     The Secretary argues that pursuant to her unitary operator
theory, the record evidence compels the conclusion that Berwind
and its wholly-owned subsidiaries together constituted a single
business enterprise that controlled and operated the mine and
therefore qualifies as a unitary operator under the Mine Act.  
S. Br. at 26-29.  Amicus USWA contends that the judge erred in
declining to hold that Berwind and its three subsidiary
corporations together constituted a unitary operator of the 
mine. USWA Br. at 4.  Contestants dispute the Secretary's 
argument that Berwind and its three subsidiaries qualify as a 
unitary operator on that ground that it is not supported by 
the evidence concerning the operations of the four entities. 
B. Resp. Br. at 52-59.

     A majority of the Commission concludes that Berwind and 
its three subsidiaries do not qualify as a unitary operator.
Chairman Jordan and Commissioner Beatty conclude that Berwind 
and its three subsidiaries - Kentucky Berwind, Kyber, and 
Jesse Branch - did not function as a unitary or single operator 
of the Elmo No. 5 Mine under the criteria of the unitary 
operator test adopted by the Commission today.  Slip op. at 
42-44, 50 n.2. Commissioners Riley and Verheggen disagree with 
the unitary operator test adopted by the Commission majority 
and its application in this case, and thus would not hold any 
of the entities liable pursuant to this theory.  Id. at 62-69, 
82-86. Commissioner Marks concludes that Berwind and its three
subsidiaries satisfy the Commission's unitary operator test. 
Id. at 58-60.  The separate opinions of Commissioners are set 
forth in Part IV.

          b.   Kyber and Jesse Branch[36]

     The Secretary and the UMWA contend that the close
relationship between Kyber and Jesse Branch, including their
shared facilities and common ownership and officers, 
establishes that they essentially functioned as alter egos 
and therefore must be considered joint operators of the mine.  
S. Br. at 51-56; UMWA Br. at 8-9.[37]  Contestants argue that 
the Secretary's alter ego argument is not supported by 
substantial evidence and is based on inapplicable precedent. 
B. Resp. Br. at 50-51.

     In our view, the judge should have considered the 
compelling record evidence concerning the high degree of 
interrelationship between Kyber and Jesse Branch, particularly 
with respect to operations at the mine, and determined whether 
these two entities qualified as a unitary operator under the 
theory espoused by the Secretary.[38]  We reach the issue, 
and conclude that the record compels the conclusion that Jesse 
Branch and Kyber meet our unitary operator test.

     The record establishes that Kyber and Jesse Branch both
lease land and coal reserves from Kentucky Berwind and contract
out the mining of the coal.  18 FMSHRC at 205-07.  At times
relevant herein, Kyber and Jesse Branch shared a president 
(Jimmy Walker), a vice president of operations (Steve Looney), 
a vice president of engineering (Randolph Scott), a controller 
(Bob Bond), a treasurer (Bryan Ronck), and an assistant 
treasurer (B. McKenney).[39]  Id. at 207; JSF 23, 34.  The two 
companies also used the same person to handle personnel matters 
(Shelia Sullivan, a Jesse Branch employee), and employed the 
same individual to manage their coal preparation plants (A.J.
Thacker).  JSF 43, 44.  Each of these individuals performed
duties on behalf of both companies, as agreed to by Kyber and
Jesse Branch, but were compensated only by Jesse Branch for 
their services.  18 FMSHRC at 207; JSF 39.

     Kyber and Jesse Branch shared an office at a facility 
owned by Jesse Branch in Kimper, Kentucky.  18 FMSHRC at 207; 
JSF 40; Tr. 495.  On occasion, Kyber and Jesse Branch used 
each others' equipment and machinery, without any written 
agreement between them governing the use of such equipment 
and machinery. 18 FMSHRC at 208; JSF 48. Kyber's secretarial 
work was also sometimes performed by Jesse Branch employees. 
18 FMSHRC at 208. Occasionally, coal produced at Kyber 
contract mines was processed at the Jesse Branch preparation 
plant.  Id.  The parties stipulated that there was no written 
agreement between the two companies concerning the manner in 
which such coal was processed or how Jesse Branch was 
compensated for the use of its plant to process Kyber's coal. 
JSF 42.  It is also undisputed that a Jesse Branch employee 
monitored the amount of coal received by both companies from 
contract mines, and arranged for transportation of the coal 
to the companies' preparation plants. 18 FMSHRC at 208; JSF 
47.  In addition, Kyber used Jesse Branch exclusively to 
provide surveying services, including preparation of mine 
maps and setting spads, at mines that it leased. 18 FMSHRC 
at 228.

     Turning to the four elements of our unitary operator test,
there is little question that Kyber and Jesse Branch meet the
"common ownership" criterion, since they are both wholly owned
subsidiaries of Berwind.  In addition, these two subsidiaries
also clearly shared common management because, at relevant 
times, their officers and board members were essentially 
identical.

     The record also establishes that, even though Kyber and
Jesse Branch were nominally separate corporations, they did not
function as completely independent entities.  Instead, their
operations were highly integrated and interrelated, particularly
in connection with the operation of the Elmo No. 5 Mine.  In
addition to sharing the same officers, who were paid by Jesse
Branch, the companies used the same office facility and shared
each others' machinery and equipment.  Moreover, as noted 
above, Kyber sometimes used employees of Jesse Branch to
perform its own secretarial services and used Jesse Branch's 
preparation plant to process coal from Kyber contract mines, 
without any written agreement providing compensation to Jesse 
Branch for such services.  Id. at 207-08; JSF 42.  Similar 
factors have been relied upon to demonstrate the functional 
integration of related entities, and support a finding that 
they were a single employer under the NLRA.  See, e.g., Lihli 
Fashions Corp., 80 F.3d at 747 (common office facilities and 
equipment); Al Bryant, 711 F.2d at 551-52 (two entities shared 
office building, equipment, and personnel, and had frequent 
interchange of employees).  In Al Bryant, the court found that 
the lack of any written agreements between the two entities 
governing the use of one company's equipment and administrative 
support by the other supported a finding that the two entities 
were a single employer.  Id. at 551.

     In addition to the high degree of interrelationship and
functional integration between Kyber and Jesse Branch, the 
record demonstrates that the two companies were viewed as
interchangeable in the eyes of officials at AA&W who worked 
with them on a regular basis.  For instance, Norman Stump, 
AA&W's mine foreman, testified that he considered Kyber and 
Jesse Branch to be "associated with each other" and different 
parts of the same company, and was therefore unable to specify 
which company set spads at the mine or determined the number 
of entries that could be mined by AA&W in certain areas.  
Tr. 40, 70-72, 100-01. Jim Akers, the vice president of AA&W, 
testified that he was unaware of any distinctions between 
Kyber and Jesse Branch, since they were "run by the same 
people" and had the "same officers."  Tr. 226, 278.  Akers 
also testified that AA&W had seven contracts to operate mines 
for Kyber or Jesse Branch, and that there was no significant 
difference in the way it operated a mine for either of the 
two companies.  Tr. 278-80.  Perhaps because of this blurred 
distinction between the two companies, Akers testified that 
it was Jesse Branch, not Kyber, that made final decisions
regarding mining projections and the direction of mining at 
the Elmo No. 5 Mine and set the contract price to be paid to 
AA&W for the coal it mined.  Tr. 244-45, 253, 276, 282-83.  
Akers also testified that the mining contract between AA&W 
and Kyber with respect to the operation of the mine was 
developed by "Jesse Branch/Kyber."  Tr. 273.

     Finally, the control exercised by Kyber and Jesse Branch
over health and safety at the Elmo No. 5 Mine was centralized
within the two companies.  The projections established by 
Kyber, which determined the direction and nature of mining 
conducted at the mine, as well as any agreed upon changes in 
the projections, were incorporated by Jesse Branch into mine 
maps submitted to federal and state regulatory authorities.  
17 FMSHRC at 694. Pursuant to its agreement with Kyber, Jesse 
Branch prepared maps showing the ventilation system at the 
mine that were submitted to MSHA every six months, and 
prepared diagrams used in the roof control plan to illustrate 
the pillaring methods used during retreat mining, based upon 
information provided by AA&W.  Id. at 693.  The record also 
indicates that all surveying and map preparation work 
performed by Jesse Branch was supervised by Randolph Scott, 
the vice president of engineering for both companies.  Tr. 
461-62.  It is also undisputed that, even though the mine 
maps were prepared and certified by employees of Jesse
Branch, they stated that they were "engineered by Kyber."  
JSF 155.

     The foregoing evidence compels a finding that Jesse Branch
and Kyber functioned as a single entity, particularly with
respect to their control over the operation of the Elmo No. 5
Mine.  Kyber and Jesse Branch shared common ownership and also
had the same management and officers.  In addition, they were
engaged in the same business, their operations were highly
interrelated, and they functioned as essentially one entity.
Moreover, the two companies exercised centralized input with
respect to health and safety matters - including the 
preparation of maps and diagrams used in required roof control
and ventilation plans.  Therefore, we conclude that on this 
issue the record can only support one conclusion - that Kyber 
and Jesse Branch constituted a single entity under the unitary 
operator test we adopt.[40]  Accordingly, remand of this issue 
to the judge is unnecessary.  See Walker Stone, 156 F.3d at 
1085 n.6  (remand not necessary where Commission properly 
determined that record as a whole allowed only one conclusion); 
Donovan on behalf of Anderson v. Stafford Constr. Co., 732
F.2d 954, 961 (D.C. Cir. 1984) (finding remand would serve no 
purpose where all evidence bearing upon issue was contained in 
record and would only support one conclusion); REB Enterprises, 
Inc., 20 FMSHRC 203, 216 (Mar. 1998) (remand not necessary 
where evidence could justify only one conclusion); American 
Mine Servs., Inc., 15 FMSHRC 1830, 1833-34 (Sept. 1993) (same).

          1.   Liability

     Contestants argue that even if the Secretary's unitary
operator theory is viable, principles of administrative law 
and due process preclude her from applying that theory to hold
Berwind and its subsidiaries liable in this case because it
amounted to a novel interpretation of the Mine Act that was
asserted without fair notice, and the Secretary failed to cite
the four entities as a unitary operator in the contested
citations and orders or in her answer to the notices of contest.
B. Resp. Br. at 59-61.[41]  The Secretary disputes Contestants'
argument that she failed to provide fair notice of her unitary
operator theory in this case on the grounds that the theory is
derived from the plain language of the Mine Act, that she had
never previously advanced an inconsistent interpretation of the
Act, and that she asserted the theory at an early (summary
decision) stage of this proceeding, well before the hearing was
held in this case.  S. Reply Br. at 14-16.

     Notwithstanding our conclusion that under the test we 
adopt today, Jesse Branch and Kyber constitute a unitary 
operator which would qualify as an operator under the Mine 
Act, a majority of the Commission also declines to hold that 
combined entity liable for any violations that may ultimately 
be found in this case. Commissioner Beatty concludes that it 
would violate principles of due process to hold Jesse Branch 
liable in this case as part of the joint entity Kyber/Jesse 
Branch because these entities did not receive fair notice that 
they could be subject to liability under the unitary operator 
theory first espoused by the Secretary in this case. Slip op.
at 44-47. Commissioner Riley concurs in Commissioner Beatty's
position on this issue (id. at 70), while Commissioner 
Verheggen has indicated that he agrees with Commissioner 
Beatty "in principle."  Id. at 87.  Chairman Jordan and 
Commissioner Marks would reject the Contestants' notice 
argument based on their conclusion that Berwind and its
subsidiaries had adequate notice that two or more of those
entities could be held liable for violations at the Elmo 
No. 5 Mine pursuant to a unitary operator theory.  Slip op. 
at 48-50, 60-61  The separate opinions of Commissioners are 
set forth in Part IV of this opinion.


**FOOTNOTES**

     [1] This contract was first developed and used by Jesse
Branch, and was based upon contracts  in  general  use 
throughout the mining industry. Id. at 690.

     [2] MSHA originally issued citations and orders to 
Berwind Land Company, but later substituted Kentucky Berwind 
in its place in the contest proceedings.  Id. at 205 n.1.

     [3] Chairman Jordan and Commissioners Marks, Riley, and
Beatty join in Part II.A of this opinion.

     [4] Two  circuits have issued differing interpretations 
of the  clause in section  3(d)  of  the  Mine  Act  "who  
operates, controls,  or  supervises a coal or other mine."   
In Association of Bituminous Contractors  v.  Andrus, 581 F.2d 
853, 861-62 (D.C. Cir. 1978), the D.C. Circuit held  that the 
clause "who operates, controls, or supervises a coal or other  
mine" only modifies the preceding noun "other person," thereby 
rendering any "owner" or "lessee"  liable  as  an  operator  
regardless  of  its  level of involvement  in  or  control  
over the mine's activities. Accord Chaney Creek Coal Corp. v. 
FMSHRC, 866 F.2d 1424, 1432 n.9 (D.C. Cir. 1989); International 
Union, UMWA  v. FMSHRC, 840 F.2d 77, 82 n.8 (D.C. Cir. 1988). 
On the other hand, the Third Circuit has construed the clause 
"who operates, controls,  or  supervises  a coal or other  
mine"  to  describe  and  qualify each noun in the preceding  
phrase "any owner, lessee, or other  person."   Elliot Coal 
Mining  Co.  v.  Director,  Office  of Workers' Compensation
Programs,  17  F.3d  616, 629-32 (3d Cir. 1994).   Elliot,  
which arose under the Black  Lung  Benefits  Act,  30 U.S.C.
§§ 901-945 ("BLBA"),  expressly  distinguished Andrus, on the  
grounds that Andrus was a Coal Act case.   17  F.3d  at 631 
(citing Bituminous Coal Operators' Ass'n, Inc. v. Hathaway,  
406  F.Supp.  371,  375 (D.C.  Va.) (in light of different  
remedial  purposes of the subchapters  of  this chapter, 
construction placed on  particular definitions in one  
subchapter  cannot be mechanically applied to all subchapters), 
aff'd, 547 F.2d 240 (4th Cir. 1975)).  See also Bituminous 
Coal Operators' Ass'n  v.  Secretary  of the Interior, 547  
F.2d  240,  245  (4th  Cir.  1977) (BLBA  case, because of
difference in statutes, does not furnish persuasive 
authority for resolution  of  issues  in  Coal  Act case).  
In this  case,  the Secretary does not argue that any owner  
or lessee is an operator under section 3(d). See S. Br. at 
33 n.13.  Rather, as indicated above, the Secretary argues 
that, to be an  "operator," an entity must  "exercise  or  
have  the authority to exercise  substantial authority over 
the overall operation  of  the  mine."  Id. at 29 (emphasis 
in original).

     [5] The  Commission  in  W-P  Coal expressly declined  
to address the issue of whether a passive operator could be 
properly cited for violations at a mine and left  that open  
for another day. 16 FMSHRC at 1411 n.5.

     [6] Commissioner  Marks  notes  that the Secretary has
submitted  that, in this case, the Commission need not reach 
the issue of whether the  entities  qualified  as operators 
under the D.C. Circuit's approach.  S. Br. at 33 n.13.   
Commissioner Marks agrees and would therefore leave the issue 
for another  time when it has been properly briefed.  He 
urges that the Secretary  bring the issue before the 
Commission at her earliest opportunity.

     [7] Chairman Jordan and Commissioners Riley and Beatty
join in Parts II.B.1, II.B.2, II.B.3, and II.B.4 of this 
opinion. Commissioner Marks concurs in result in Part II.B.1 
of this opinion.

     [8] When reviewing an administrative law judge's factual
determinations, the Commission  is bound by the terms of the 
Mine Act to apply the substantial evidence test.  30 U.S.C.
§  823(d)(2)(A)(ii)(I).   "Substantial   evidence"  means  
"`such relevant evidence as a reasonable mind might  accept  
as adequate to support [the judge's] conclusion.'" Rochester 
& Pittsburgh Coal Co., 11 FMSHRC  2159, 2163 (Nov. 1989) 
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 
(1938)).

     [9] We do not find  the  terms of the contract relating 
to Kyber's authority over the mine plan  to  be determinative 
of its operator status.  Rather, the contract is additional  
evidence of the  relationship  between  Kyber  and  AA&W with 
respect to  the operation  of  the  mine.   See  slip op. at 
77 n.11. This is entirely consistent with Bulk Transportation. 
Interestingly, our dissenting colleague violates his own 
restrictive reading of Bulk Transportation when he attempts 
to  rely on the agreement between Kyber and AA&W to rebut the 
judge's finding  that  Kyber retained more control over the
direction  of  mining  than the typical lessee.  See slip op. 
at 77 nn.9 & 11.

     [10] Kentucky Berwind leased separate coal  reserves in 
a coal  seam  located  above  the  Elmo  No. 5 Mine to an 
unrelated company,  which  then  contracted  with Corvette  
Mining  Company ("Corvette") for the operation of a  surface 
mine to extract the coal. 17 FMSHRC at 699. On April 8, 1993,
a roof  fall occurred at  the Elmo No. 5 Mine, which was 
apparently caused by  blasting at the Corvette mine. Id. at 
700.

     [11] Randolph Scott, vice president of engineering for
both Kyber and Jesse Branch (JSF 23, 34), notified Kentucky
Berwind of the roof fall, after receiving notification from 
AA&W that Corvette was "shooting their mine in." 17 FMSHRC 
at 700; JSF 294 & Ex. E at 3.  Following additional  roof  
fall  problems caused  by  blasting  at  the  Corvette  mine,  
Kentucky  Berwind officials  visited  the Elmo No. 5 Mine to 
examine affected areas of the roof.  17 FMSHRC  at  700.  On 
April 12, 1993, Steve Dale, the chief mine inspector and land  
manager  of  Kentucky Berwind, and  two  other  Kentucky  
Berwind  mine  inspectors visited  the Corvette  mine and the 
Elmo No. 5 Mine, where  they  met with  a Corvette official, 
AA&W   vice  president  Jim  Akers,  and  a representative of 
the  Kentucky   Division   of   Surface  Mine Reclamation  
Enforcement. Id;  JSF  297. Akers was extremely angry  about  
the April 8 blasting incident, stating  that  AA&W "almost 
had four men  killed" as a result.  JSF Ex. E at 3.  When
Dale suggested that Corvette  limit the frequency of its 
blasting activity  and the strength of explosives  used,  
Kyber President Jimmy Walker responded  by  insisting that  
Corvette  move  its blasting operations 500 feet away from 
the operations of the Elmo No.  5  mine.  17 FMSHRC at 700; 
JSF 301 & Ex. E at 4.  Corvette was notified of Kyber's 
position, and agreed to move its blasting operations the 
requested 500 feet.  JSF Ex. E at 4.

     [12] The  record  also indicates that, in initially
selecting AA&W as the contract mine  operator  for the Elmo 
No. 5 Mine, Kyber was requested by Berwind to assure itself 
that  AA&W was  capable  of operating the mine in a safe
manner, in order to conform to corporate policy. JSF 97-99.

     [13] We think Commissioner Verheggen overstates the 
nature of this limitation on Kyber's authority to review and 
approve any deviation  from  the  mining  projections. While  
Commissioner Verheggen  asserts  that   "Kyber   could   not  
overrule  AA&W's deviations  from  the  mine  plan when they 
involved  matters  of safety and health" (slip. op.  at 76) , 
the record indicates that any such restriction was not express,  
but  implied.  Indeed, the very stipulation that Commissioner 
Verheggen relies upon states only that "[Kyber] interpreted 
the mining contract to allow [Kyber] to reject AA&W Coals' 
requests to mine less than the full extent of the mine 
projections, unless mining conditions  made it unsafe to mine 
those areas." JSF 187 (emphasis added). In fact, the provision 
of the coal mining contract between Kyber and  AA&W relating 
to this issue expressly obligated AA&W to "[c]onduct all
mining  operations  .  .  .  in  accordance with mining plans 
and projections prepared by [Kyber's] engineers[.]"  JSF Ex. C 
¶ 4.c. (emphasis added).  This fully supports  the judge's 
finding that, under the express terms of the contract,  AA&W  
was  required  to adhere  to  the mining projections 
established by Kyber, and that Kyber had the  consequent  
right  to  reject any deviation to the projections proposed by 
AA&W that would not lead to the efficient extraction of coal.  
18 FMSHRC at 237-38.

     [14] Like Kyber, W-P Coal was a lessee which "entered 
into a contract with [independent contract operator] Top Kat, 
under which Top Kat extracted the coal in return for royalty
payments from W-P based  upon  the number of tons of clean 
coal produced." Id. at 1407.  Significantly,  the  contract 
between W-P Coal and Top Kat identified Top  Kat, not W-P  
Coal,  as  the  entity  "responsible   for   controlling  the  
mine,  hiring  miners  and  complying  with  mine safety  and  
health laws."  Id. at 1408 (emphasis added).

     [15] Because   we   do   not  adopt  the  Secretary's
interpretation of the word  "operator," we need not address
Kyber's assertion that it lacked notice of the Secretary's
definition of the term. Moreover, because we hold that Kyber 
is an  operator  by simply applying a test that is well-
developed in Commission case  law (see W-P Coal, 16 FMSHRC at 
1411), Kyber has no  claim  that it was not provided notice  
of  its  potential liability as an operator.

     [16] The Secretary also argues that Jesse Branch could 
be found to be an operator of  the mine on the alternative 
ground that it was an "independent contractor  performing 
services . . . at [a] mine," within the meaning of section 
3(d) of the Mine Act. S. Br. at 55 n.21.  We decline to 
address this argument, however, since  the Secretary failed 
to properly preserve  it  on  appeal. Under the  Mine Act and 
the Commission's procedural rules, review  is  limited to the  
questions raised in the petition for discretionary review.
30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(f). See 
Wyoming  Fuel Co. n/k/a Basin Resources, Inc., 16 FMSHRC 1618, 
1623 (Aug. 1994),  aff'd  mem., 81 F.3d 173 (10th Cir. 1996); 
Donovan on behalf of Chacon v.  Phelps  Dodge  Corp., 709  
F.2d  at 91 & n.6.  The Secretary's petition did not mention
this alternative theory for finding Jesse Branch to be an
operator, and instead focused solely on the relationship 
between Jesse  Branch  and  Kyber,  which  is  discussed  
below  in  Part II.C.3.b.  See S. Pet. at 16-17.

     [17] In Part II.C.3.b, infra, we consider whether Kyber
and Jesse Branch together  constitute a single operator under 
the Mine Act.

     [18] Chairman Jordan  and  Commissioners  Marks and 
Beatty join in Parts II.C.1, II.C.2, and II.C.3.b of this 
opinion.

     [19] The Secretary's "unitary operator" interpretation
focuses only on whether two or more entities should be treated 
as one,  and  thus  might  be more appropriately  described 
as  the "single entity" theory. Whether a particular entity, 
unitary or otherwise, qualifies as an operator under section  
3(d) of the Mine Act is a separate question that is resolved 
by applying the control test discussed in Part II.A.

     [20] The examination to determine whether there is such  
a  clear  Congressional intent is commonly referred to as a 
"Chevron I" analysis.   Thunder  Basin,  18  FMSHRC  at 584; 
Keystone Coal Mining Corp., 16 FMSHRC 6, 13 (Jan. 1994).

     [21] Section  2  of  the  NLRA  contains  the following
definitional provisions:

               (1)   The  term "person" includes one or
          more   individuals,    labor   organizations,
          partnerships, associations, [or] corporations
          . . . .

               (2)   The term "employer"  includes  any
          person acting  as  an  agent  of an employer,
          directly or indirectly . . . .

29 U.S.C. § 152.  Section 701 of Title VII provides:

               (a)  The term "person" includes  one  or
          more  individuals,  governments, . . .  labor
          unions,      partnerships,      associations,
          corporations,  legal  representatives, mutual
          companies,  joint-stock   companies,  trusts,
          [or] unincorporated organizations . . . .

               (b)  The term "employer"  means a person
          engaged  in  any industry affecting  commerce
          who has fifteen  or more employees     . . .,
          and any agent of such a person . . . .

42 U.S.C. § 2000e.

     [22] We reject Contestants' suggestion that the single
employer doctrine  developed under the NLRA and Title VII is
inapplicable in a Mine Act context because none of the cases
relied upon by the Secretary applied that doctrine to hold
liable, as a single employer, a group of companies that did 
not employ any of the employees in question. B. Resp. Br. at 
56. This can be readily explained by the fact that the NLRA 
and Title VII   are   statutes  concerned  with  regulation  
of employment relations, as  opposed  to  the  Mine  Act,  
which  is  primarily concerned with protection of the health 
and safety of miners.  As discussed  infra,  at  33,  our  
test  for determining a "unitary operator" under the Mine Act 
takes account  of this difference in the orientation of the 
respective statutory schemes.

     [23] We find it noteworthy that at least one commentator
has  concluded that the single employer test developed under  
the NLRA may be appropriately applied to employers in the coal 
mining industry, for purposes of regulating labor relations. 
See  Forrest H. Roles,  Unique  Nature of  the  Coal  Mining 
Industry - Are the  Labor  Law  Rules  Determining  When Two 
Employers Should be Treated as One Different for the Coal  
Industry?,  97  W.  Va. L. Rev. 985, 993-96 (1995).

     [24] See, e.g., Package Serv. Co. v. NLRB, 113 F.3d 845,
847-48 (8th Cir. 1997)  (corporate parent liable for unfair 
labor practices  committed  by  subsidiary);   NLRB   v.  
International Measurement  &  Control  Co., 978 F.2d 334, 340 
(7th  Cir.  1992) (parent corporation liable  for  obligations 
to  employees under collective  bargaining agreement between 
subsidiary  and  union); Royal Typewriter  Co.  v.  NLRB, 533
 F.2d 1030, 1042-43 (8th Cir. 1976) (derivative unfair labor  
practice liability imposed on corporate parent).

     [25] See, e.g., Lihli Fashions  Corp., 80 F.3d at 748
(affiliate is responsible for obligations of related entity 
under collective  bargaining  agreement);  NLRB v. Rockwood 
Energy & Mineral Corp., 942 F.2d 169, 174 (3d Cir. 1991)  
(mine  operator, corporate parent, and another related 
corporation found to be a single employer were bound by terms 
of collective bargaining agreement  executed by operator); 
Al Bryant, 711 F.2d  at  553 (affiliated companies found to 
be single employer are bound to each others' collective 
bargaining agreements).

     [26] S. Rep. No. 91-411, at 44 (1969), reprinted in 1 
Coal Act Legis. Hist. at 170.

     [27] We are not persuaded by the Contestants' argument
that application of the unitary operator theory to hold 
Berwind and its three subsidiaries liable as a single operator 
would lead to each of those entities  being  held separately 
responsible for complying with the requirements applicable  
to operators, such as taking dust samples, conducting a 
training program, and preparing a ventilation plan. B. Resp. 
Br. at 20-23. The  Secretary's interpretation of the Act would 
not obligate each of the entities that constitute a single 
operator  to  comply  with  these requirements, but rather 
would only require compliance  by one of the entities.  
See S. Reply Br. at 4-6.

     [28] The Commission found this approach "particularly
appropriate" in Mineral Coal Sales in view of evidence of
"pervasive intermingling of personnel and functions among
entities that sporadically operated at the facility, with 
little or no apparent regard for business or contractual
formalities." Id.

     [29] Commissioner Verheggen's  reliance  (slip. op. at 
82-83) on the Supreme Court's decision in United States v. 
Bestfoods, 524  U.S. 51 (1998) to suggest that our adoption 
of a unitary operator theory  represents  a departure from 
fundamental principles of corporate law is misplaced. First 
that case addressed   issues   of   liability   under   the  
Comprehensive Environmental  Response,  Compensation,  and  
Liability  Act,  42 U.S.C.  §  9601  et  seq.  ("CERCLA"), a 
far different statutory scheme whose primary statutory goal 
is not the protection of the health and safety of miners or 
other  employees,  but the cleanup of  hazardous  waste  
sites and the allocation of related  costs. Second, the 
language quoted by Commissioner Verheggen (slip op. at 83) 
relates to the issue of whether  a  parent  may  be  held
liable  as  an  operator  under  CERCLA  for  the  actions 
of its subsidiary, referred to as "indirect" or "derivative" 
liability by the Court in  Bestfoods,  without piercing the 
corporate veil. By contrast, our unitary operator theory, and 
the single operator doctrine developed under the NLRA  and  
Title  VII, addresses the separate question of when it is 
appropriate, and  consistent with settled principles of 
corporation law, to disregard  the separate corporate 
existence of two or more entities whose operations  are
so interrelated that they function as a single entity.

     [30] A separate alter ego doctrine developed under the
NLRA is distinguishable from both the alter ego theory of
corporation law and the single employer doctrine.  It is
generally applied when a new legal entity  replaces a 
predecessor company, and focuses on "the existence of a 
disguised continuance or an attempt to avoid the obligations 
of a collective bargaining agreement  through  a sham 
transaction or a technical change in operations." Carpenters 
Local  Union  1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 
508 (5th Cir. 1982),  cert.  denied, 464 U.S. 932 (1983). 
See also Howard Johnson Co. v. Detroit  Local  Joint Exec. 
Bd., 417 U.S. 249, 259 n.5 (1974); Southport Petroleum Co.
v.  NLRB, 315 U.S. 100, 106 (1942); Lihli Fashions Corp., 
80 F.3d at 748;  Al Bryant, 711 F.2d at 553.  As a result, 
"the alter ego test is notably  different than the `four-
factor' single employer test." Lihli Fashions Corp., 80 F.3d 
at 748-49, and cases cited. It  focuses  on  factors   
including substantial identity of management, business  
purpose,  operation, equipment, customers, supervision, and 
ownership between  the  old and new corporation. Al Bryant, 
711 F.2d at 553-54; Pratt-Farnsworth, 690 F.2d at 508.
There is disagreement among the courts of  appeals  as to
whether an "intent to evade" statutory obligations is a 
necessary element of  an  alter ego finding.  See Stardyne, 
Inc. v. NLRB,  41  F.3d 141, 146-47  &  n.4  (3d Cir. 1994) 
(collecting cases).  See also Gary MacDonald, Labor  Law's  
Alter  Ego  Doctrine:   The Role of Employer  Motive in 
Corporate Transformations, 86 Mich.  L.  Rev. 1024, 1039-52 
(1988) (surveying positions taken by the courts of appeals).

     [31] The law of the state of Kentucky, the jurisdiction 
in which the Elmo No.  5  Mine  is  located  and the events 
at issue herein arose, likewise recognizes that:

          The   legal  fiction  of  distinct  corporate
          existence  may  also be disregarded in a case
          where  a  corporation  is  so  organized  and
          controlled, and its affairs are so conducted,
          as  to make  it  merely  an  instrumentality,
          conduit  or  adjunct  of another corporation.
          It is not enough, however,  that shareholders
          in the corporation are identical.   Nor is it
          enough  that  one corporation owns shares  in
          the  other and that  they  have  interrelated
          dealings.   In order to warrant treating them
          as one, it must  further appear that they are
          the business conduits  and  the  alter ego of
          one another.

Louisville Gas & Elec. Co. v. Moore, 284 S.W.  1082, 1083-84 
(Ky. 1926) (quoting 1 Fletcher, Cyclopedia Corporations § 45,
at 63). See also United States v. WRW Corp., 778 F.Supp. 919, 
924  (E.D. Ky. 1991) (discussing elements of alter ego theory 
under Kentucky law, which include "such unity of interest 
and ownership that the separate  personalities  of  the  
corporation[s]  . . . no longer exist"), aff'd, 986 F.2d 138 
(6th Cir. 1993); Hermitage  Land  & Timber Co.  v. Scott's
Ex'rs, 93 S.W.2d 1, 4 (Ky. 1936) ("we have not hesitated to  
look  beyond  the  form  or  shadow  when  the corporation  
is the mere dummy or alter ego or conduit of individuals or 
of another corporation").

     [32] We find unconvincing the Secretary's argument for
application of the "common enterprise"  standard developed 
under the FLSA to determine  whether related entities  
constitute a unitary operator under the Mine Act, given that 
the term "enterprise" in that statute  has  no  analogue in 
the Mine Act.
See FLSA § 3(r), 29 U.S.C. § 203(r).

     [33] The Commission has long recognized that "the Mine 
Act is not an employment statute.  The Act's concerns  are 
the health and the safety of the nation's miners."  UMWA on 
behalf  of  Rowe v.  Peabody Coal Co., 7 FMSHRC 1357, 1364 
(Sept. 1985), aff'd sub nom. Brock on behalf of Williams v. 
Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987).

     [34] We disagree with Commissioner Riley's interpretation
(slip op. at 67) of certain statements made by the Secretary's
counsel at oral argument as an attempt to amend or refine her
proposed unitary operator test to add an element of "economic
involvement" or "economic control."  See Oral Arg. Tr. 10-11. 
In response  to  a  question  from Commissioner  Verheggen,  
counsel merely alluded to economic considerations  to further 
explain why a labor organization, such as the UMWA, could not 
qualify as an operator under the test proposed by the 
Secretary, as  suggested by Contestants.

     [35] We do not agree with Commissioner Riley's assertion
that "nothing is gained" through application of our unitary
operator test since Kyber and Jesse Branch, the two entities 
that we find to constitute a unitary operator under this test, 
"could . . . have  been  cited  under  conventional  notions 
of operator status."  Slip op. at 62 & n.1.  The unitary 
operator theory must also be applied to resolve the potential 
liability of Kentucky Berwind  and  Berwind, given our prior 
conclusions that these two entities do not  by  themselves  
qualify  as  operators under the control test we apply.

     [36] A majority of Commissioners, Chairman  Jordan, and
Commissioners Marks  and  Beatty,  conclude  that Kyber and 
Jesse Branch qualify as a unitary operator.

     [37] The   Secretary  argues  that  because  of  their
interrelationship Kyber  and  Jesse  Branch  should be 
considered "alter  egos." See S. Br. at 55-56. In using the  
term  "alter ego," the  Secretary  may  have  instead  been  
referring  to the separate theory of corporation law, which 
focuses on whether two or more separate corporate entities  
are so interrelated that their corporate separateness may be 
disregarded. See discussion supra, at 30-32.  In any event, 
there can be no question that the  Secretary   argues   in  
essence  that  Kyber  and  Jesse  Branch functioned as a 
unitary  operator  of  the  Elmo  No. 5 Mine, and therefore  
we apply our newly-adopted unitary operator test in evaluating 
the legal relationship between these two entities. Contrary to 
the arguments of our dissenting colleagues (slip op. at  66  
n.5, 86), we also find that this theory of liability  was
raised by  the  Secretary  to the judge.  See S. Mot. For 
Partial Sum. J. at 27-29 ("Although  legally  [Jesse  Branch] 
and [Kyber] are  separate corporate entities, in practice the  
companies  did not function  as  sovereign, independent 
entities"); id. at 33-34 ("Since [Jesse Branch]  undertook  
these activities [at the Elmo mine] in conjunction with, and
on behalf of [Kyber], . . . [Jesse Branch] and [Kyber] were 
acting as `alter egos'  at the Elmo mine and both must be 
considered an [sic] `operators' of  the mine."). Indeed, in  
his initial order and notice of hearing, the  judge 
acknowledged the Secretary's  arguments  that  Jesse  Branch  
and Kyber  were  interrelated  and served each other's 
interests, but declined to accept or consider them. 17 FMSHRC 
at 710-11, 712.

     [38] The judge implicitly rejected the argument that 
Jesse Branch and Kyber should together be considered a unitary 
operator of  the Elmo No. 5 Mine, and  analyzed  the  status  
of the two companies only as a separate entities. See 18 
FMSHRC at 236-43.

     [39] In the past, the two companies also shared the same
treasurer and assistant treasurer.  Id. at 207.

     [40] Given our prior conclusion that Kyber's supervision
and control over the operation of the mine were sufficient 
to render it an operator within the meaning of the  Mine Act 
(supra, at 11-16), it follows that the combined Kyber/Jesse 
Branch entity also  ualifies as an operator. Indeed, this 
combined entity possesses many of the same  indicia  of  
authority and control as the non-production operator that the 
Commission held was properly subject to prosecution by the 
Secretary in W-P Coal, 16 FMSHRC at 1411.

     [41] The  Commission  finds  no merit in Contestants'
argument that, because the Secretary never cited the four
entities collectively as a single operator either  in the
underlying  citations and orders, or in her answers  to
Contestants' notices of contest, the Secretary's unitary 
operator theory is not properly before it. See B. Resp. Br. 
at 60-61 & n.50.   Even  though  the  Secretary,  in  her  
answers, may have alleged  only that the Contestants were 
each individually liable as an operator, without explicitly 
asserting that the four entities  were  collectively liable 
as a unitary operator, we are not precluded from considering 
the unitary operator theory if it was knowingly and fairly 
litigated  by  the  parties  before the judge. This result  
is mandated  by Rule 15(b) of the Federal Rules  of  Civil  
Procedure, which provides for conformance of pleadings to the 
evidence adduced at trial, and permits the adjudication of   
issues actually litigated by the parties irrespective of 
pleading  deficiencies.  See  Faith Coal Co., 19 FMSHRC 1357, 
1362 & n.10 (Aug. 1997). In this case, the record indicates 
that the Secretary's unitary operator theory  was fully
litigated  by the parties and explicitly addressed by the 
judge. See 18 FMSHRC at 233.

                               III.

                            Conclusion

     For the foregoing reasons, we vacate the judge's 
conclusion that, in order to establish an entity as an 
operator under the Mine Act, the Secretary must prove that 
the entity, either directly or indirectly, substantially 
participated in the operation, control, or supervision of 
the day-to-day operations of the mine, or had the authority 
to do so.  Instead, we evaluate the participation and 
involvement of the entity in the mine's engineering, 
financial, production, personnel, and health and safety 
matters to determine whether that entity had substantial
involvement with the mine, and therefore qualified as an 
operator under the Act.  We affirm the judge's findings that 
Kyber is an operator of the Elmo No. 5 Mine, and that Jesse 
Branch, Kentucky Berwind, and Berwind are not individual 
operators. We remand these cases for further proceedings as 
to Kyber.

     We vacate the judge's rejection of the Secretary's 
unitary operator theory, and hold that two or more entities 
may be considered a unitary operator for purposes of the Mine 
Act based upon consideration of their: (1) interrelation of 
operations, (2) common management, (3) centralized control of 
mine health and safety, and (4) common ownership. We hold 
that, under this standard, Berwind and its three subsidiaries 
do not qualify as a unitary operator for purposes of the Mine 
Act, but that Kyber and Jesse Branch do constitute a single 
entity, which would qualify as an operator of the mine.  
We further conclude, however, that the joint entity
Kyber/Jesse Branch may not be held liable for any Mine
Act violations in this case.

                               IV.

              Separate Opinions of the Commissioners

Commissioner Beatty, concluding that Berwind and its three
subsidiaries do not qualify as a unitary operator under the
Commission's unitary operator test; and holding that Kyber 
and Jesse Branch did not receive fair notice that they could 
be subject to liability under the unitary operator theory 
first espoused by the Secretary in this case, and that 
therefore the combined Kyber/Jesse Branch entity may not be 
held liable for any violations found in these cases.

     A.   Berwind and Its Three Subsidiaries Do Not Qualify 
          as a Unitary Operator

     The record in this case compels the conclusion that 
Berwind and its three subsidiaries do not qualify as a unitary 
operator. There is little question that these four entities 
satisfy the "common ownership" criterion, since Kentucky 
Berwind, Kyber, and Jesse Branch are all wholly-owned 
subsidiaries of Berwind.  In addition, the record indicates 
that the four companies shared common officers and 
management.[1]  There is also some interrelationship in the 
operations of the four companies, due to their vertical 
integration with respect to the ownership and leasing of mine 
property.[2]  However, the record establishes that, with one 
exception discussed below, the Contestants otherwise 
functioned as independent entities. Although Berwind, as the 
parent holding company, was responsible for overseeing the
operations of its subsidiaries and making decisions concerning
the general direction of their business (18 FMSHRC at 208-09),
it was not directly involved in the operations of Kentucky 
Berwind, the owner of coal reserves, or of Kyber and Jesse 
Branch, which both lease coal reserves and contract for the 
mining of the coal they lease.  Berwind had no direct 
involvement with the operation of the Elmo No. 5 Mine, and no 
relationship with AA&W, the contract operator. Id. at 211, 234.

     The record also indicates that Kentucky Berwind and Kyber
dealt with each other at "arm's length" with respect to coal
reserves leased by Kentucky Berwind to Kyber, including those 
at the Elmo No. 5 Mine.  The written lease agreement between 
the two subsidiaries involving the mine required Kyber to, 
inter alia, submit coal samples from the mine to Kentucky 
Berwind for quality analysis, allow Kentucky Berwind's 
inspectors on the premises to ascertain the condition of the 
mine and the amount of coal removed, and assure that coal 
reserves at the mine were mined to the greatest extent 
possible, consistent with mining conditions, relevant laws, 
and regulations.  17 FMSHRC at 694, 713.  The lease also gave 
Kentucky Berwind the right to terminate the lease if it 
determined that Kyber was not complying with its terms, to
penalize Kyber for lost coal reserves, and to order an 
immediate cessation of mining if the reserves were being 
damaged or if mining was conducted in violation of law.  Id. 
at 714.  Pursuant to the lease, Kentucky Berwind received 
monthly royalties from Kyber for coal mined at that location. 
18 FMSHRC at 210. Kentucky Berwind had no relationship with 
AA&W and no direct involvement in the operation of the Elmo 
No. 5 Mine.  Id.  The only Kentucky Berwind employees who 
entered the mine were those who visited on a quarterly basis, 
or upon request, to examine the workings and check seam heights 
and tonnages to confirm royalties  and insure that coal was 
being recovered properly.  Id. at 210-11.

     Finally, it does not appear that there was any 
centralized control by these companies over health and safety 
matters at mine property owned by Kentucky Berwind and leased 
to Kyber or Jesse Branch.  Rather, the record indicates that 
health and safety issues were largely the responsibility of 
the contract operator of the mine, in this case AA&W.  AA&W 
was responsible for the preparation and submission to MSHA of 
the mine's roof control plan, ventilation plan and system, 
and other plans required for health and safety purposes, 
including the fire fighting plan, miner training plan, smoking 
articles search plan, self-contained self rescuer plan, and 
fan stoppage plan.  17 FMSHRC at 690; 18 FMSHRC at 221, 226.  
AA&W also developed and implemented the respirable dust and 
noise sampling programs required under the Mine Act and 
provided required training for its miners.  17 FMSHRC at 
690-91.  In addition, AA&W was responsible for maintaining 
preshift and onshift examination books at the mine. 18 FMSHRC 
at 221.  AA&W representatives participated in MSHA  
inspections and subsequent conferences, and decided whether
to challenge the validity of citations issued by MSHA 
inspectors. 17 FMSHRC at 695-96.  AA&W also decided the 
manner in which violations should be abated and paid all 
penalties assessed under the Mine Act.  Id. at 696.  There 
is no evidence that Berwind or Kentucky Berwind had any 
involvement at all with respect to health and safety issues 
at the Elmo No. 5 Mine.

     In sum, although these four entities satisfy the common
ownership criterion and shared common management to a 
significant extent, in our view these factors are outweighed 
by the evidence that these entities operated essentially 
independently of each other and (with the exception of Kyber 
and Jesse Branch, discussed below) dealt with each other at 
"arm's length."  In addition, there is little or no evidence 
that these entities exercised any significant degree of 
centralized control over health and safety matters at the 
mine.  Chairman Jordan and I believe that the foregoing 
evidence compels the conclusion that Berwind and its three 
subsidiaries - Kentucky Berwind, Kyber, and Jesse Branch - 
did not function as a unitary or single operator of the Elmo 
No. 5 Mine under the criteria set forth above. Accordingly, 
we conclude that a remand to the judge to determine whether 
these four entities collectively constitute a unitary operator 
is not necessary.  American Mine Servs., Inc., 15 FMSHRC
1830, 1833-34 (Sept. 1993); see also cases cited supra,
slip op. at 38-39.

     B. Liability/Fair Notice of the Unitary Operator Theory

     It is well established that in cases involving imposition
of civil penalties, considerations of due process "prevent[] 
. . . deference [to an agency's interpretation] . . . that 
fails to give fair warning of the conduct it prohibits or 
requires." Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. 
Cir. 1986). For, "`elementary fairness compels clarity' in 
the statements and regulations setting forth the actions with 
which the agency expects the public to comply."  General Elec. 
Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995) (quoting Radio 
Athens, Inc. v. FCC, 401 F.2d 398, 404 (D.C. Cir. 1968)). For 
an agency's interpretation may be permissible but nevertheless 
may fail to provide the notice required to support imposition 
of a civil penalty.  General Electric, 53 F.3d at 1333-34; 
Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 
1982).  An agency will be deemed to have provided fair notice 
of its interpretation, "[i]f, by reviewing the regulations and 
other public statements issued by the agency, a regulated party 
acting in good faith would be able to identify, with 
`ascertainable certainty,' the standards which the agency 
expects parties to conform."  General Electric, 53 F.3d at 
1329 (citing Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 
(5th Cir. 1976)).

     In resolving the notice issue raised with respect to 
the Secretary's unitary operator theory, it is fundamental 
to first determine whether the Contestants, in particular 
Kyber and Jesse Branch, had fair notice that they were 
subject to liability pursuant to that theory.[3]  Despite 
our conclusion that the Secretary's unitary operator theory 
is a reasonable statutory interpretation that merits our 
deference, I conclude that, under the standards set forth 
above, neither the Secretary's actions nor the language of 
the Mine Act were sufficient to put Kyber and Jesse Branch 
on notice that they were potentially subject to liability as 
a joint entity in this case.

     First, it is undisputed that the unitary operator theory
was not previously advanced by the Secretary in any prior 
civil penalty case brought pursuant to the Mine Act.  Cf. 
General Electric, 53 F.3d at 1331 (finding of lack of fair 
notice of agency interpretation was reinforced where 
"[a]lthough th[e] reading [wa]s certainly permissible, the 
agency present[ed] it for the first time [on] appeal"). In 
addition, although we have concluded that the unitary operator 
theory is consistent with, and supported by, the meaning of 
certain definitional terms used in the Mine Act - specifically,
the terms "person," "association," and "organization" - as 
reflected in everyday dictionary definitions of those terms, 
it is also fair to state that this interpretation "would not 
exactly leap out at even the most astute reader" of these 
provisions.  Rollins Envtl. Servs. Inc. v. EPA, 937 F.2d 649,
 652 (D.C. Cir. 1991).

     It is also clear that the Secretary provided no notice 
to the Contestants, through preenforcement efforts designed 
to achieve compliance with the Mine Act, that they might be 
subject to liability pursuant to a unitary operator theory. 
See General Electric, 53 F.3d at 1329.  Rather, she 
"effectively decid[ed] `to use a citation . . . as the 
initial  means  for  announcing  [this]  particular 
interpretation'" of the Mine Act.  Id. (quoting Martin v. 
OSHRC, 499 U.S. 144, 158 (1991)).  It has been  previously 
recognized that "such a decision may raise a question
about `the adequacy of notice to regulated parties.'" Id.

     We have also concluded in this case that the Secretary's
unitary operator theory was presaged, and is further supported,
by the single employer doctrine that has developed through
application and interpretation of similar provisions of the 
NLRA  and Title VII.  I do not believe, however, that given 
the facts presented here Kyber and Jesse Branch can fairly be 
charged with knowledge of these doctrines, particularly since
the doctrines have developed under statutory schemes unrelated 
to mine health and safety.[4]

     Based on the foregoing, I conclude that the Contestants 
did not have adequate notice of the Secretary's "unitary
operator" theory of liability in this case, and therefore 
Jesse Branch, as part of the Kyber/Jesse Branch joint entity, 
should not be held liable for any Mine Act violations 
ultimately found to have been committed in these cases pursuant 
to that theory.[5]

     I disagree with the suggestion made by Chairman Jordan, 
in her separate opinion, that the above-described requirement 
of fair notice has no applicability here because we are 
concerned not with the requirements of a particular regulation,
but rather with whether Jesse Branch was on notice of its 
potential liability as a unitary operator.  Slip op. at 48.  
In my view, the notice requirement takes on even greater 
importance where, as here, the relevant agency interpretation 
relates to the threshold issue of the coverage of an entirely 
new class of entities under the Mine Act, as opposed to the 
requirements of a specific regulation.  If a party has no idea 
of its potential liability under a new interpretation of an 
existing statute or regulation, such as the unitary operator 
theory, I believe that it is profoundly unfair, and 
inconsistent with the teachings of General Electric and its 
progeny, to impose liability for civil penalties pursuant to 
such a theory without fair notice.

     I also find Sewell Coal Co. v. FMSHRC, 686 F.2d 1066 
(4th Cir. 1982), and the other cases cited by Chairman Jordan, 
to be unpersuasive.  As noted by Judge Widener in his dissent 
in Sewell, neither SEC v. Chenery Corp., 332 U.S. 194 (1947), 
nor NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), "involved
the imposition of a fine without notice."  686 F.2d at 1073.  
In Bell Aerospace, the Supreme Court explicitly acknowledged 
this distinction, stating:  "[T]his is not a case in which 
some new liability is sought to be imposed on individuals for 
past actions which were taken in good faith reliance on Board 
pronouncements. Nor are fines or damages involved here."  Id. 
at 295 (emphasis added).  Neither Molina v. INS, 981 F.2d 14 
(1st Cir. 1992), nor General American Transportation Corp. v. 
ICC, 872 F.2d 1048 (D.C. Cir. 1989), also cited by Chairman 
Jordan, dealt with the imposition of liability without prior 
notice; indeed, in Molina the court expressly notes that no 
due process claim is involved. 981 F.2d at 19.  See also 
Energy West Mining Co., 17 FMSHRC 1313, 1317 n.7 (Aug. 1995) 
(distinguishing cases on similar grounds).

     Nor am I persuaded by the arguments of Chairman Jordan 
and Commissioner Marks that Jesse Branch should have been on 
notice that it was potentially liable as an operator pursuant 
to the "independent contractor" provision of section 3(d).  
Slip op. at 50, 55.  The unitary operator theory is a totally 
separate and distinct legal construct that provides a basis 
for finding entities such as Kyber and Jesse Branch to be 
"unitary operators," based on the interrelationship between 
the entities. Therefore, any arguments by my colleagues in 
the majority that Jesse Branch was alternatively liable as 
an independent contractor fail to recognize the distinctions 
between these two theories and therefore have no bearing 
whatsoever on the question of whether Jesse Branch had 
adequate notice of its potential liability as a unitary 
operator.[6]

     Accordingly, I conclude that because Jesse Branch did 
not have adequate notice of the Secretary's "unitary operator" 
theory of liability in this case, and that it was thus subject 
to liability as part of the Kyber/Jesse Branch joint entity, 
it should not be held liable for civil penalties assessed for 
any Mine Act violations that are ultimately found in this 
case.


                              Robert H. Beatty, Jr., 
                                Commissioner


**FOOTNOTES**

     [1] Thomas Falkie, the president of Berwind, was the
chairman of the board of Jesse Branch, Kentucky Berwind, and
Kyber. 18 FMSHRC at 209. Berwind's vice president, Richard
Rivers, was also  the  vice  president of the three 
subsidiaries. Id.  In addition, Berwind's chief financial
officers acted in the same capacity for Jesse Branch,  
Kentucky Berwind, and Kyber; its assistant  secretary also  
acted  as  secretary  for  the  three subsidiaries; and its 
controller was  also  the  controller  of Kentucky Berwind.  
Id. The treasurer and assistant treasurer of Kentucky Berwind 
also held the same positions with Kyber and Jesse Branch.  
Id. at 208. Berwind's board of directors approved the election 
of Jimmy Walker as president of Jesse Branch and Kyber. Id. 
at 209.   Walker hired Steve Looney as vice president of 
operations, and Bob Bond as controller, of both of these
subsidiaries. Id. Walker and the president of Kentucky 
Berwind both reported to Berwind's president, Falkie. Id.

     [2] Although  Berwind  has  never received a dividend 
as a shareholder of Kyber, it has received  dividends from 
Kentucky Berwind, which  are in part attributable to 
royalties received by Kentucky Berwind on its coal leases. 
18 FMSHRC at 212. Berwind is also paid a management fee by 
its subsidiaries for legal, financial, and administrative 
services. Id. In addition, Kyber paid Berwind for services 
provided by Berwind Coal Sales, Inc., another Berwind 
subsidiary, in locating customers and negotiating contracts 
for the sales of coal mined for Kyber. 17 FMSHRC at 697.

     [3] Of course, this issue is largely academic with 
respect with Kyber, which we have already  found to be an 
operator of the mine within the meaning of the Mine Act. See 
Part II.B.1. With respect to Jesse Branch, however, the 
question  becomes far more significant,  since we have 
previously concluded in  Part  II.B.2 that Jesse Branch, on 
its own, does not qualify as an operator. Therefore, our 
resolution  of  the notice issue is dispositive of whether  
Jesse  Branch  may  be held  liable  for  any  Mine  Act
violations, pursuant to the unitary  operator  theory, as 
part of the Kyber/Jesse Branch joint entity.

     [4] In  addition,  Title   VII  has  a  jurisdictional
prerequisite that limits its application to small companies. 
See 42 U.S.C. § 2000e(b).

     [5] This is  consistent  with  the  result in General
Electric, where the D.C. Circuit deferred to the agency's
interpretation because  it was "`logically consistent  with 
the language  of  the  regulation[s],'"  but found that the
interpretation  was  "so  far  from  a  reasonable person's
understanding of the regulations that they could not have  
fairly informed [the regulated party] of the agency's 
perspective."  53 F.3d  at  1330  (quoting Rollins, 937 F.2d 
at 652) (alteration in original). Although the agency could 
require future compliance with its interpretation, the lack 
of fair notice led the court to reverse the enforcement action 
taken in that particular instance. Id. at 1328, 1330. See also 
United States v. Hoechst Celanese Corp., 964 F. Supp. 967, 985 
(D.S.C. 1996) (concluding  that "due process  precludes a 
finding of liability" where plant owner  was not  afforded  
fair  notice  of  U.S.  Environmental  Protection Agency's 
interpretation  of  regulatory  exemption  from  benzene
regulation).

     [6] I  also note that the Commission majority has agreed
that the Secretary has failed to preserve on appeal the issue 
of the  potential  liability  of  Jesse  Branch  as  an  
independent contractor.  See slip op. at 16 n.16. Separate 
opinion of Chairman Jordan, holding that Jesse Branch received 
fair notice that it could be held liable as an operator:

     I write separately to express my view that Jesse Branch 
was provided with sufficient notice regarding its potential 
liability as an operator.[1]  At the outset, it is essential 
to understand what this inquiry does not involve: it is not 
concerned with the question more frequently posed in Mine Act 
cases as to whether an operator had notice about the 
requirements of a particular regulation.  See, e.g., Ideal 
Cement Co., 12 FMSHRC 2409 (Nov. 1990).  Consequently, a 
discussion of whether a regulation provided "fair warning of 
the conduct it prohibits or requires," (separate opinion of
Commissioner Beatty, slip op. at 44, citing Gates & Fox, 790 
F.2d at 156), or whether an operator could know "with 
`ascertainable certainty,' the standards which the agency
expects parties to conform" (id.), is not helpful here. This
case is simply not about whether a reasonably prudent person
would have been put on notice of a specific standard requiring,
for example, that signs needed to be posted (Bluestone Coal
Corp., 19 FMSHRC 1025 (June 1997)) or a circuit breaker set at 
a certain level.  BHP Minerals Int'l, Inc., 18 FMSHRC 1342 
(Aug. 1996).  Rather, it is simply about whether Jesse Branch
was on notice of its potential liability as an operator. This 
question hinges on the language of the Mine Act and its 
interpretation.

     In this case we adopt the unitary operator theory, and, 
as is the common practice, apply the rule we are announcing 
to the relevant parties in this proceeding. This is consistent 
with the widely recognized concept that "retroactive 
application of new principles in adjudicatory proceedings is 
the rule, not the exception."  Molina v. INS, 981 F.2d 14, 23 
(1st Cir. 1992). In Molina, the First Circuit explicitly 
addressed the question of whether the INS had improperly 
utilized a retroactive interpretation in a proceeding in which 
it ordered an individual deported despite his amnesty request. 
Id. at 20-23. The Court held that in so doing, INS acted 
within its legal authority.  Id. at 23.

     Similarly, in Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 
1070 (4th Cir. 1982), in which the Fourth Circuit affirmed a
Commission judge's decision imposing a penalty on an operator,
the court held that, "retroactive application of a novel
principle expounded in an adjudicatory proceeding does not
infringe the rights secured by the due process clause."  In 
fact, the D.C. Circuit has noted that "it seems clear that 
the circumstances in which a rule may be announced but not 
applied in an adjudication are few."  General Am. Transp. 
Corp. v. ICC, 872 F.2d 1048, 1061 (D.C. Cir. 1989) (upholding 
the retroactive application of the reversal of a 40 year old 
Interstate Commerce Commission policy that had prevented 
railroads from charging the owners of railcars for 
transportation costs in certain circumstances).  See also 
Local 900, Int'l Union of Elec., Radio & Mach. Workers v. 
NLRB, 727 F.2d 1184, 1194-95 (D.C. Cir. 1984) (upholding 
retroactive application that resulted in imposition of money 
damages).

      This doctrine was carefully articulated by the Supreme
Court in SEC v. Chenery Corp., 332 U.S. 194 (1947). In Chenery
the Court reviewed a decision of the Securities and Exchange
Commission ("SEC") applying new standards of conduct to
management trading during a stock reorganization.  The SEC 
ruled that the trading at issue violated federal law.  The 
corporations argued that the SEC was free to announce its new 
rule but that it had to remain prospective and could have no 
retroactive effect upon the parties to the case.

     The Supreme Court soundly rejected this approach, stating:

          To hold that the Commission had no
          alternative in this proceeding but to approve
          the proposed transaction, while formulating
          any general rules it might desire for use in
          future cases of this nature, would be to
          stultify the administrative process.  That we
          refuse to do.

               . . . .

          There is thus a very definite place for the
          case-by-case evolution of statutory
          standards. . . .

               . . . [W]e refuse to say that the
          Commission, which had not previously been
          confronted with [the question at issue], was
          forbidden from utilizing this particular
          proceeding for announcing and applying a new
          standard of conduct.  That such action might
          have a retroactive effect was not necessarily
          fatal to its validity.  Every case of first
          impression has a retroactive effect, whether
          the new principle is announced by a court or
          by an administrative agency.  But such
          retroactivity must be balanced against the
          mischief of producing a result which is
          contrary to a statutory design or to legal
          and equitable principles.

Id. at 202-03 (emphasis added) (citation omitted).

     As Justice Scalia has noted, "Chenery involved that form 
of administrative action where retroactivity is not only 
permissible but standard.  Adjudication deals with what the 
law was; rulemaking deals with what the law will be." Bowen v. 
Georgetown Univ. Hosp., 488 U.S. 204, 221 (1988) (Scalia, J., 
concurring) (emphasis in original).

     Moreover, Jesse Branch should have been on notice in any
event that it was potentially liable as an operator.  The
Secretary argued before both the judge and the Commission that
Jesse Branch should be considered an operator of the Elmo Mine
pursuant to section 3(d) of the Mine Act because it was an
independent contractor performing services at a mine.  S. Mot.
Part. Sum. J. at 33, n. 27, S. Br. at 55 n. 21.  Although I 
agree with the Commission's holding that the Secretary failed 
to preserve this question on review to prove liability (slip 
op. at 16 n.16), I conclude that, for purposes of ascertaining 
whether proper notice existed, the record would compel the 
conclusion that Jesse Branch was an independent contractor.  
This is due to the mine mapping, surveying, and spad services 
it performed at the mine.  17 FMSHRC at 711-12.  The case law 
is clear that such an independent contractor may be held 
liable as an operator. Williams Natural Gas Co., 19 FMSHRC 
1863 (Dec. 1997). Accordingly, Jesse Branch should always 
have been aware of its duty to comply with the Mine Act and 
its regulations.  It should not be permitted to escape 
liability in this case by claiming that it lacked adequate 
notice of its legal responsibilities.[2]


                              Mary Lu Jordan, Chairman


**FOOTNOTES**

     [1] I do not address the issue of whether or not Kyber 
had notice of the unitary operator theory, as the Commission 
has already found that Kyber is an operator, based on its 
status as a single  entity  (slip  op.  at  11-16) and was 
on notice of its potential liability as an operator (slip op. 
at 16 n.15).

     [2] In addition, I agree with Commissioner Beatty that,
applying the unitary operator test that  we adopt today, the
record in this case compels the conclusion that  Berwind and 
its three  subsidiaries do no  qualify as a unitary operator.  
See slip op. at 42-44.


     Separate opinion of Commissioner Marks, concurring in 
part and dissenting in part:

     I join with the majority in concluding that Kyber 
qualifies as an operator under the Mine Act. I dissent from 
the majority in their conclusion that neither Berwind, 
Kentucky Berwind, or Jesse Branch are operators because I 
find that all three of these entities qualify as operators.  
I join with the majority in adopting a unitary operator test, 
and in concluding that under such test, Jesse Branch and 
Kyber compose a unitary operator. However, I conclude that 
all four entities - Berwind, Kentucky Berwind, Kyber, and 
Jesse Branch - constitute a unitary operator and therefore 
dissent on that ground.

     A.    Kyber

     As discussed in the majority opinion, Kyber had 
substantial involvement with the mine.   Kyber was the 
lessee of Elmo No. 5 Mine and possessed the right to mine 
coal at that mine.  17 FMSHRC at 689. Kyber contracted with
 AA&W for the mining of the coal.  Id. at 689-90.  As part 
of the arrangement with AA&W, Kyber had "bottom line 
authority" for determining the direction of mining; it had 
final authority to approve mining projections and "to insist 
upon the projections it wanted."  Slip op. at 11 (citing 18 
FMSHRC at 237-39).   Kyber also had some involvement in the 
decisions concerning the manner of mining and the quality
and quantity of coal produced at the mine.  Slip op. at 
12-13. The contract with AA&W gave Kyber the authority to
approve and enforce Elmo No. 5's mine plan, which governed 
matters such as the applicable ventilation and roof control 
plans, the number of employees, and the type of equipment to 
be used.  Id. at 12.  As the majority correctly points out, 
the authority to control operations is a relevant 
consideration in determining whether an entity qualifies as 
an operator.  Id.   Based on these facts, Kyber's 
participation more than exceeds the substantial involvement 
test applied by the Commission in this case.  After all, in 
an analogous context, "substantial" has been described by
the Supreme Court and courts of appeals as amounting to 
"more than a mere scintilla."   Richardson v. Perales, 402 
U.S. 389, 401(1971) (quoting Consolidated Edison Co. v. NLRB, 
365 U.S. 197, 229 (1938))[1]; Grand Canyon Air Tour Coalition 
v. FAA, 154 F.3d 455, 475 (D.C. Cir. 1998); Kajaria Iron 
Castings PVT. Ltd v. United States, 156 F.3d 1163, 1173 (Fed. 
Cir. 1998).  Webster's II New Riverside University Dictionary 
at 1045 (1988) defines a "scintilla" as "a tiny amount: 
trace."  Kyber certainly exhibited more than a scintilla of 
involvement in the Elmo No. 5 Mine.

     My conclusion that Kyber is an operator is buttressed by 
the cases of Association of Bituminous Contractors, Inc. v.
Andrus, 581 F.2d 853, 861-62 (D.C. Cir. 1978); Chaney Creek 
Coal Corp v. FMSHRC, 866 F.2d 1424, 1432 n.9 (D.C. Cir. 1989);
and International Union, UMWA v. FMSHRC, 840 F.2d 77, 82 n.8 
(D.C. Cir. 1988).  In those cases, the D.C. Circuit explained 
that regardless of an owner's or lessee's level of activity at 
a mine, an owner or a lessee qualify as an operator under 
section 3(d) of the Mine Act.   Id.  By virtue of the fact 
that Kyber was the lessee of the Elmo No. 5 Mine, Kyber 
qualifies as an operator under the Mine Act. 17 FMSHRC at 689.

     The plain language of the Mine Act also supports that 
view. Under section 3(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."  30 U.S.C. § 802(d) 
(emphasis added).  The Mine Act does not attach conditions 
to the type of owner or lessee who may be an operator but 
states that  "any owner, lessee . . ." qualifies as an 
operator.  Use of the term "any" in the provision indicates 
that "any" owner or lessee is an operator under the Act.  
As stated in my concurring opinion in Joy Technologies Inc., 
17 FMSHRC 1303 (Aug. 1995), with respect to the independent
contractor clause of the operator definition, "any" means 
"any" and there is no warrant in the plain language of the 
Act or in the legislative history for diluting the term "any." 
Id. at 1311 (citing Otis Elevator Co. v. Secretary of Labor, 
921 F.2d 1285, 1290 (D.C. Cir. 1990)).  The D.C. Circuit in 
Andrus likewise reasoned that, if one assumes a contrary view 
and interprets the clause "who operates, controls, or 
supervises a coal mine" to attach to "owner," "lessee," as 
well as "other person," the "specification of owner and 
lessee would then be superfluous" and the statute could 
merely have read "`operator' means any person who operates, 
controls or supervises a coal mine."  581 F.2d at 862. The 
Mine Act specifically named "any owner, lessee, or person 
who operates . . . [a] mine" as operators.  Adhering to
that plain language, I conclude that Kyber, as "any lessee,"
qualifies as an operator.

     B.   Kentucky Berwind

     Kentucky Berwind was the owner of the mineral rights at 
the Elmo No. 5 Mine.  JSF 52.  As the legal owner, Kentucky 
Berwind had the right to extract coal from the mine itself 
or could lease that right to others. JSF 88. In contracting 
the right to extract coal to Kyber, Kentucky Berwind 
maintained substantial involvement with the workings of the 
Elmo No. 5 Mine.  In the lease agreement, Kentucky Berwind 
retained the right to approve long-term contracts for the 
sale of coal to any third party; required Kyber to submit 
samples and analyses of coal; required Kyber to maintain 
records of coal produced and sold; required Kyber to 
regularly furnish it with mine maps; permitted Kentucky
Berwind's inspectors to enter on to the premises for coal
sampling, inspections, surveying, measuring, and ascertaining 
the conditions of the mine; required Kyber to adhere to the 
laws and regulations promulgated under the Mine Act; required 
Kyber to secure the written permission of Kentucky Berwind to 
sublease or assign any part of the leasehold. JSF Ex. B at 13, 
15, 18-20, 21, 22-23 (Lease Agreement).  The lease agreement 
indicates that Kentucky Berwind had the authority to oversee 
many of the operations of Elmo No. 5, including whether health 
and safety regulations were being followed at the mine. As 
discussed in section A, supra, it is the authority to control 
operations, and not the actual exercise of that authority, 
that is relevant in determining whether an entity qualifies 
as an operator.

     Kentucky Berwind's substantial involvement in the 
workings of Elmo No. 5 Mine is particularly illustrated in 
three instances.  First, Kentucky Berwind regularly inspected 
Elmo No. 5 pursuant to the lease agreement with Kyber. JSF 
Ex. B at 19-20.  Kentucky Berwind's inspectors conducted 
inspections of the mine on at least 16 occasions between 
June 19, 1990, and September 24, 1993. JSF 224-26. Kentucky 
Berwind's inspectors had the right to enter the mine and mine 
property and inspect at will.  JSF 228.  As part of these 
inspections, Kentucky Berwind's inspectors developed 
inspection reports detailing their observations. JSF Ex. D. 
The reports noted the general conditions of the surface and 
underground areas, including whether the roof control plan 
was being followed, whether ventilation was adequate, and 
the type and condition of the mine floor and roof.  JSF 
Ex. D-2.

     Second, Kentucky Berwind's oversight is shown by its
reaction to the April 1993 roof fall at the Elmo No. 5 Mine
caused by blasting at the neighboring Corvette mine.  JSF 
Ex. E. Kentucky Berwind was notified of the incident and sent 
its head inspector, Steve Dale, to the mine to determine the 
cause of the problem.  JSF 295-302, Ex. E (Memo to Hunt from 
Dale, dated April 20, 1993).[2]  In particular on April 12, 
1993, Dale obtained mine maps from Jesse Branch and went to 
the Elmo No. 5 Mine.  JSF Ex. E.  He accompanied an MSHA 
inspector and an AA&W representative underground and examined 
the cause of the roof fall.  JSF 298, Ex. E.  One citation 
was issued to the mine for the fall.  JSF 300, Ex. E.  Dale 
worked with Jimmy Walker, President of Kyber and Jesse Branch, 
to come up with an acceptable solution for blasting at the 
Corvette Mine so as not to endanger the safety of miners at 
the Elmo No. 5 Mine.  JSF 301, Ex. E. Dale also ensured that 
the violation was abated. JSF Ex. E.  This sequence of 
events, which was stipulated to by the parties (JSF 302), 
unquestionably shows Kentucky Berwind's substantial 
involvement with the Elmo No. 5 Mine.  Even the judge, 
following the incorrect test of day-to-day control, stated
that "this may show that Kentucky Berwind was `involved' with
the operation at the mine."  17 FMSHRC at 715.[3]  Unlike the
majority and the judge, I do not dismiss this as an isolated
instance of Kentucky Berwind's taking control in order to 
protect its property rights.  Slip op. at 20; 17 FMSHRC at 
714-15. I  agree with the Secretary that the level of control 
that Kentucky Berwind exhibited with regard to this roof fall 
plainly demonstrates that Kentucky Berwind had the authority 
to actively oversee operations at the mine and would exercise 
that authority when a specific need arose for it to do so.  
S. Br at 43.

     The third indicium of Kentucky Berwind's substantial
involvement is that Kentucky Berwind participated in decisions
concerning changes in mining direction.  JSF 188, 189, 191, 
192. In particular, Kyber notified Kentucky Berwind before 
decisions were made to not mine an area that had been projected 
to contain recoverable coal.  JSF 191.  Kyber sought guidance 
from Kentucky Berwind as to whether mining should continue in 
certain areas where the coal contained an unusually high level 
of inherent ash. JSF 193.  During the process of waiting for 
a decision from Kentucky Berwind as to the direction of future 
mining, AA&W mined an area of the mine that had prior approval. 
JSF 190. Accordingly, Kentucky Berwind's authority to approve 
or disapprove mining changes had a significant effect on the 
actual working of the mine.

     The case of  W-P Coal Co., 16 FMSHRC 1407 (July 1994) 
is instructive.  There, the Commission found the level of
involvement of W-P Coal Company, which is comparable to that 
of Kentucky Berwind, sufficient to support the Secretary's 
decision to proceed against W-P as an operator. Id. at 1411. 
Like Kentucky Berwind, W-P held the mining rights to the mine 
but contracted with Top Kat to extract the coal in return for 
royalty  payments paid to W-P.  Id. at 1407.  The Commission 
found significant that W-P personnel visited the mine 
frequently, had met with MSHA personnel regarding mine 
conditions, and had involvement in the mine's engineering, 
financial, production, personnel, and safety affairs. Id. at 
1411. Similarly, Kentucky Berwind inspectors were on mine 
premises regularly and had contact with MSHA following the 
roof fall incident.  JSF 224-26, 302, Ex. E.  Under the lease 
agreement with Kyber, Kentucky Berwind retained authority to 
oversee financial, production, engineering, and safety 
affairs.  JSF Ex. B at 13-15, 18-20, 21, 22-23. In W-P Coal,
the Commission recognized that the Secretary did not have to 
show that the owner and the contract operator were co-equals 
in order for the Secretary to proceed against the owner of 
the mine.  16 FMSHRC at 1411.  The Commission expressly did 
not reach the argument that an entity only passively involved
with a mine was also properly cited for a contractor's 
violation, but found W-P's involvement more than a sufficient
basis for MSHA to proceed against it.  Id. at 1411 n.5.  
Applying a similar substantial involvement test, Kentucky 
Berwind had sufficient participation with the workings of the 
Elmo No. 5 Mine for the Secretary to proceed against it as 
an operator.

     Finally, and perhaps most importantly, Kentucky Berwind 
was the "owner of the premises."  Lease Agreement, JSF Ex. B 
at 18. Pursuant to Andrus, 581 F.2d at 861-62, and the plain 
terms of the Mine Act section 3(d), which the majority seems 
quite willing to disregard, Kentucky Berwind is an operator 
by virtue of the fact that it is "any owner."  Accordingly, 
I would reverse the judge's determination that Kentucky 
Berwind was not an operator under the Act.

     C.    Jesse Branch

     I join with the majority in concluding that Jesse Branch 
and Kyber functioned as a single entity with respect to their 
control over the operation of the Elmo No. 5 Mine.  Slip op. 
at 38-39. Having concluded that Kyber was an operator having 
substantial involvement with Elmo No. 5 Mine, I am led to the 
conclusion that Jesse Branch also qualifies as an operator.

     Additionally, I also believe that Jesse Branch, standing
alone, qualifies as an operator.  Under Mine Act section 3(d), 
an operator is defined as "any independent contractor 
performing services at a mine."  30 U.S.C. § 802(d).  The 
evidence unquestionably reveals that Jesse Branch was an 
independent contractor performing services at the mine.[4]  
Jesse Branch performed the engineering services of surveying, 
spad setting and preparation of mine maps.  Slip op. at 17.  
The mine maps prepared by Jesse Branch established the 
projections that AA&W was required to follow when driving 
entries in the mine, and also designated the areas in the mine 
from which coal could not safely be extracted because of the 
presence of natural gas wells.  17 FMSHRC at 693; JSF 166, 167, 
178, 179.  Jesse Branch employees generally surveyed and set 
spads at the mine on a weekly basis. 17 FMSHRC at 692-93.  
Jesse Branch provided AA&W with technical  expertise that AA&W 
lacked regarding on-site implementation of the projections, 
the mine cover, and the number of entries it would sustain.  
18 FMSHRC at 241-42.  While conducting surveys at the mine, 
Jesse Branch employees also collected information concerning 
the dimensions of the coal seam, entry ways, and coal pillars, 
the centers on which mining was conducted, stopping  lines, 
conveyor beltlines and roof falls.  17 FMSHRC at 693. Jesse 
Branch also inspected the drainage ponds on the surface of
the mine.  JSF 209.  The majority concludes that "Jesse Branch
played an important role in the operation of the Elmo No. 5
Mine."  Slip op. at 17.  On the additional ground that Jesse
Branch was, at the very least, an independent contractor
performing services at the mine, I would reverse the judge 
and conclude that Jesse Branch constituted a separate 
operator under the Act.

     D.   Berwind

     In determining that Berwind was not an operator, the 
judge applied the incorrect day-to-day control test and failed 
to inquire into whether Berwind was involved in the Elmo No. 5 
Mine. The majority, although rejecting the judge's day-to-day 
test,does not stray far from it.  What the majority overlooks 
is that when the term "operator" was first defined in the Coal 
Act, Congress specifically explained that indirect operation, 
control or supervision of a mine may render a person an 
operator. S. Rep. No. 91-411, at 44; Coal Act Legis. Hist. at 
170. Berwind provides a perfect example of an entity that 
exercised substantial indirect control and supervision such 
that it qualifies as an operator under the Act.

     Berwind is the parent company of Kentucky Berwind, Kyber 
and Jesse Branch.  JSF 58.  It is a holding corporation whose
business it is to oversee its subsidiaries.  JSF 63.  Berwind 
had the power to direct its subsidiaries as well as to approve 
and remove the officers of the subsidiaries.  JSF 64-66. The 
parties stipulated that three individuals were the primary 
officers that acted on behalf of Berwind.  JSF 62.  Those 
individuals were Thomas Falkie, president of Berwind, and 
vice presidents Richard Rivers and Bryan Ronck. JSF 60, 62.[5] 
All three of those individuals were also board members or 
officers for Kentucky Berwind, Kyber, and Jesse Branch.  
17 FMSHRC at 688.  The president of Kyber and Jesse Branch, 
Jimmy Walker, reported directly to the president of Berwind, 
Thomas Falkie, regarding the operation of the two companies.  
JSF 69.  Similarly, the president of Kentucky Berwind, Ray 
Brainard, reported to Falkie. JSF 69.[6]   Berwind had the 
power to approve, reject, or replace the officers of Kyber, 
Jessie Branch, and Kentucky Berwind.  17 FMSHRC at 688; JSF 
66, 67.  By virtue of the fact that Berwind unilaterally 
selected and/or approved the officers of Kentucky Berwind, 
Kyber, and Jesse Branch, Berwind exerted substantial indirect 
control over the Elmo No. 5 Mine.

     When the President of Jesse Branch and Kyber, Jimmy Walker,
selected AA&W to contract mine the Elmo mine, Walker advised the
president of Berwind, Falkie, of the selection. JSF 97. Berwind
maintained a policy that its subsidiaries must only engage mining
contractors to perform mining operation on land owned by Berwind
subsidiary companies that were capable of operating the mines in
a safe manner, including operation in conformity with MSHA's
regulations and state mining regulations.  JSF 98.  In order to
conform to corporate policy, Berwind requested Kyber to assure
itself that AA&W was capable of operating the Elmo mine in a safe
manner.  JSF 99.  Accordingly, Berwind had indirect substantial
involvement in the safety of the Elmo No. 5 Mine.

       Berwind performed substantial oversight of Kyber, Jesse
Branch, Kentucky Berwind, and the workings of the Elmo mine.  
The judge found that Berwind is involved in decisions that 
affect the general direction of business of its subsidiaries. 
17 FMSHRC at 688.  Berwind  reviews financial statements and 
coal production reports of Kentucky Berwind, Kyber, and Jesse 
Branch. Id. at 688-689.  In particular, Falkie and Rivers, 
Berwind's vice president, who is also vice president of Kyber, 
Jesse Branch, and Kentucky Berwind, monitor Kentucky Berwind's 
lease-holding activities and are aware of the economic 
performance, personnel, coal sales, and coal quality of Kyber 
and Jesse Branch.  Id. at 689.  Falkie receives monthly 
reports from Kyber and Jesse Branch regarding coal production 
at each mine in which contract mining is conducted.  Id. 
 Kyber submits reports to Berwind listing the projected 
tonnage for the Elmo No. 5 Mine, and the amount of coal
actually mined, along with small mine maps of areas that have
been mined.  JSF 281.  Kyber also submits financial reports
documenting monies generated in mining operations.  JSF 282.
After the explosion, from which these citations stem, Falkie
began receiving internal daily reports on the amount of coal
processed at Kyber and Jesse Branch preparation plants.  
JSF 77.

     Berwind had the ultimate responsibility to resolve 
disputes between its subsidiaries, including disputes over 
the feasibility of mining certain resources owned by Kentucky 
Berwind. JSF 68. This power of final resolution is very 
significant in that, if Kyber and Kentucky Berwind were to 
disagree over the mining projections at Elmo No. 5, whether 
or not they ever did so, it was up to Berwind to make the 
final binding determination.  Id.  As set forth above, the 
authority to control is a relevant consideration in the 
operator inquiry.

     Berwind's control is best illustrated in its economic
dealings with Kyber and Jesse Branch.  The parties stipulated
that neither Jesse Branch nor Kyber are profitable companies.
JSF 284. Berwind as the shareholder of those companies provides
some funds to them for their operating expenses and capital
expenditures. Id. All significant expenditures are approved by
Berwind. Id. Berwind provided the capital expenditure required
to conduct the preparatory and face-up work necessary to begin
mining at the Elmo mine. 18 FMSHRC at 234; JSF 286.   In its
economic dealings, Berwind had direct substantial involvement
with the mine.

     Berwind's direct and indirect participation in the 
workings of Elmo No. 5 Mine more than qualifies as substantial
involvement. For this reason, I would reverse the judge's 
finding that Berwind is not an operator.

     E.    Unitary Operator

     Although I join in the majority's adoption of the unitary
operator test, I conclude that all four Berwind entities in
question satisfy the Commission's test.  Therefore I dissent on
that ground.

     Under the Commission's test, four general factors are
considered, but not every factor need be present and no
particular factor is controlling.  Slip op. at 33.  Those 
factors are (1) interrelation of operations, (2) common
management, (3) centralized control of labor relations, and
(4) common ownership. Id. Without question, the record 
conclusively establishes the two factors of "common ownership" 
and "common management."  Id. at 2, 56.  As to the factor of 
"interrelation of operations," the high level of common 
management causes a substantial degree of interrelation in 
this case.  I agree with the Secretary that there is no way 
to separate the actions Falkie, Rivers, and Ronck took as
members of the boards of Berwind's subsidiaries from their 
actions as members of the board for Berwind. S. Br. at 46 
n.17.  Indeed, both Rivers, General Counsel of Berwind (as 
well as vice president of Kentucky Berwind, Kyber, and Jesse 
Branch) and Ronck, Chief Financial Officer of Berwind (as 
well as treasurer of Kentucky Berwind, Kyber, and Jesse 
Branch) provided legal and financial oversight to the 
subsidiaries. JSF 73-74, 102-103.

     Interrelation of operations is also illustrated in the
financial arrangements among the companies.  Berwind provided
Kyber and Jesse Branch with necessary capital for expenses 
and capital expenditures and never received a dividend as a
shareholder of Kyber. 18 FMSHRC at 212; JSF 284. Berwind was
involved in the financial analysis aspects of some equipment
purchases made by Jesse Branch and Kyber.  JSF 285.  A high
degree of interrelation is further shown in the arrangement
between Berwind, Kyber/Jesse Branch, and Kentucky Berwind as 
to the power to approve or disapprove mining changes at the 
Elmo No. 5 Mine.  JSF 188-193.  Kyber had the bottom-line 
authority to approve mining projections in its relationship
with AA&W; Kentucky Berwind in turn had the authority to 
approve or disapprove any changes in mining projections in its 
relationship with Kyber; and in case of any disputes between 
them, Berwind had the ultimate responsibility to resolve 
disputes among its subsidiaries.  18 FMSHRC at 237-39; JSF 68, 
188-93. These arrangements show a high degree of interrelation 
between the entities with Berwind having the final and 
dispositive authority in disputed matters among the entities.

     The Berwind entities also had a high degree of 
interrelation with respect to health and safety matters. This 
interrelation of operations is particularly illustrated by 
the April 1993 roof fall at the Elmo Mine.  The memo of 
Kentucky Berwind head inspector Steve Dale, dated April 20, 
1993, that the parties stipulated was an accurate account of 
the activities of personnel of Berwind and its subsidiaries, 
is on the parent company Berwind's stationery. JSF 302, Ex. E.  
According to the memo, Randy Scott, the vice president of 
engineering for both Jesse Branch and Kyber contacted Dale 
about the roof fall.  JSF 302 Ex. E.  Dale contacted the 
president of Kentucky Berwind, Ray Brainard.  Id.  Brainard 
reports to Falkie, president of Berwind and Chairman of the 
Board for Kentucky Berwind, Kyber, and Jesse Branch.  JSF 34, 
55, 60, 69. Dale was sent to investigate. JSF Ex. E. He met
with Randy Scott and Jim Akers of AA&W and discussed the effect 
the blasting had on the Elmo No. 5 Mine. Id. He reported his 
findings to the president of Kentucky Berwind. Id. Dale and 
other Kentucky Berwind inspectors investigated the roof fall. 
Id.  As part of his investigation, Dale went to Jesse Branch 
to pick up maps of the Elmo No. 5 Mine. Id.  Dale then 
accompanied MSHA in its inspection of the Elmo mine, and 
ensured that all citations were properly abated. Id. Dale 
was involved in working out a plan between Walker, president
of Kyber and Jesse Branch, and the neighboring Corvette mine.
Id.

     As to the fourth factor, centralized control over health 
and safety matters, it may be true that AA&W handled the 
day-to-day health and safety matters.  But this is not 
dispositive.  As the court stated in Penntech Papers, Inc. 
v. NLRB, 706 F.2d 18 (1st Cir. 1983), with respect to 
centralized labor relations, upon which the majority draws 
for its test:  "Although [the company's] day-to-day labor 
matters were apparently handled at the local level, this fact 
is not dispositive.  `A more critical test is whether the 
controlling company possessed the present and apparent means 
to exercise its clout in matters. . . by its divisions or 
subsidiaries.'"  Id. at 26 (quoting Soule Glass & Glazing Co.
 v. NLRB, 652 F.2d 1055, 1075 (1st Cir. 1981).  As set forth 
previously in my opinion, both Kentucky Berwind and Berwind
required compliance with health and safety regulations at the
Elmo No. 5 Mine.  Berwind had the authority to replace any of
its subsidiaries' officers and to resolve disputes among
subsidiaries.  Berwind also had significant funding control
over Kyber/Jesse Branch who, in turn, held the bottom line 
authority for determining mining projections at Elmo No. 5 
Mine as well as approving the mine plan, which governed many 
health and safety matters at the mine. See slip op. at 11-12.
Berwind may not have had local control of the safety of the 
mine, but the record compels the conclusion that Berwind 
possessed the clout in any matters of dispute between its 
subsidiaries and had the authority, by its control of 
management and funding, to direct and oversee the four 
entities at issue.

     The evidence in this case reveals that, although 
ostensibly separate corporations, the Berwind respondents 
acted as an integrated mining operation[7] together with the 
contract operator AA&W to perform the functions that were 
necessary to the mining operation at the Elmo No. 5 Mine. 
Each of the respondents had a specialized function in which 
they engaged for the benefit of the overall mining operation.  
Berwind was established to oversee the subsidiaries and, as 
such, it provided its subsidiaries with the capital necessary 
for their operations. JSF 283, 285, 286.  Berwind specifically 
provided the capital for the face-up work necessary to begin 
operation of the Elmo No. 5 Mine.  JSF 286.  The officers of 
the subsidiaries reported to Falkie, who was the president of 
Berwind, as well as the Chairman of the Board for Kyber, 
Kentucky Berwind, and Jesse Branch. JSF 23, 34, 55, 60, 69. 
 Members of Berwind's Board of Directors sat on the boards of 
directors for each of its subsidiaries.  JSF 23, 34, 55, 60. 
 Kyber and Jesse Branch contracted out the actual extraction 
of coal, supervised the extraction, and provided engineering 
support necessary to run the mine.  18 FMSHRC at 207; JSF 22, 
33, 149.  Coal consumers paid Kyber for coal extracted. JSF
236. Kyber paid royalties to the Berwind subsidiary, Kentucky
Berwind, who was the owner of the premises, and who also
performed a supervisory role over the mining.  JSF 52, 188-89,
191-93.  In turn, Kentucky Berwind paid dividends to Berwind.
JSF 287.

     The four entities acted in concert to start up the mine, 
to finance its operation, and to keep the mine running.  The 
fact that these four entities have been separately incorporated 
should not bar their treatment as an operator, when if one 
entity was performing all these functions that entity would 
clearly be held to be an operator.   In determining that 
Berwind exercised "such pervasive control" over the entities 
that the entities should be treated as one (slip op. at 33), 
I find relevant that Kyber and Jesse Branch were not 
profitable, self-supporting companies.  JSF 284.  Berwind 
provided them with funds for operating expenses and capital 
expenditures.  Id.  Effectuation of the Mine Act's purpose 
is clearly enhanced by requiring large and well-funded 
entities that oversee subsidiary coal production companies, 
which are not so well funded, to be involved in safety aspects 
of the  mine.  Cf. Cyprus Indus. Minerals Co. v. FMSHRC, 664 
F.2d 1116, 1120 (9th Cir. 1981) ("A mine owner cannot be 
allowed to exonerate itself from its statutory responsibility 
for the safety  and health of miners merely by establishing 
a private contractual relationship in which miners are not 
its employees and the ability to control the safety of its 
workplace is restricted") (citing Republic Steel Corp., 
1 FMSHRC 5, 11 (April 1979)).

     Under the test announced by the majority, I conclude 
that Berwind, Kentucky Berwind, Kyber, and Jesse Branch 
constitute a unitary operator.

     F.   Notice

     I join with Chairman Jordan in concluding that, because 
we adopt the unitary operator theory as part of an 
adjudicative proceeding, it is appropriate to apply the 
theory to the relevant parties in the proceeding.  Because 
I conclude that all four entities constitute a unitary 
operator, neither Kyber nor Jesse Branch nor Kentucky Berwind 
nor Berwind may claim lack of notice of the Secretary's 
theory as a bar to their potential liability as operators.

     Moreover, there was sufficient court and Commission
precedent to put Kyber, the lessee of the mine, on notice 
that it was subject to potential liability as an operator 
as a result of the D.C. Circuit's interpretation of section 
3(d) of the Mine Act in Andrus, 581 F.2d at 861-62.  There 
the court opined that the clause, "who operates, controls, 
or supervises a coal or other mine" in section 3(d) only 
modified the preceding noun "other person," thereby rendering 
any "owner" or "lessee" liable as an operator regardless of 
its level of involvement in or control over the mine's 
activities.  Id. (emphasis added).  This interpretation of 
the language of section 3(d) was approved by the D.C. Circuit 
in Chaney Creek, 866 F.2d at 1432 n.9 and International Union,
 UMWA v. FMSHRC, 840 F.2d at 82 n.8.  See also Bituminous 
Coal Operators Ass'n, Inc. v. Secretary of Interior, 547
 F.2d 240, 246 (4th Cir. 1977) ("But the [1969 Coal] Act 
does not limit the term operator to owners and lessees. It
expressly mentions any `other person who . . . controls or
supervises a coal mine.'") In addition, the Commission case 
of W-P Coal Co., 16 FMSHRC 1407 (July 1994), held that a 
lessee was properly subject to suit as an operator of the 
subject mine.

     Likewise, Jesse Branch should have been on notice that 
it was potentially liable as an operator because the record 
compels the conclusion that it was an independent contractor 
performing services at the mine.  So too, Kentucky Berwind, 
as the owner of the mine, should have been on notice that it 
was potentially liable as an operator.  Andrus, 581 F.2d at 
861-62.  Similarly, Berwind, by virtue of its involvement 
with the Elmo mine, as well as because it provided 
supervision and control over the owner and lessee of the 
mine, should have been on notice that it potentially could 
be held liable as an entity "who operates, controls, or 
supervises a coal or other mine."  30 U.S.C. § 802(d).  
Accordingly, I conclude that all four Berwind entities
had sufficient notice that they were potentially subject 
to liability as operators under the Mine Act.

     G.   Conclusion

     When introducing the term "operator" in the Coal Act,
Congress intended that the term "be as broad as possible."
S. Rep. No. 91-411 at 44; Coal Act Legis. Hist. at 170. In 
keeping with that Congressional mandate, I conclude that 
all four entities at issue - Berwind, Kentucky Berwind, 
Kyber, and Jesse Branch - qualify as operators.  I also 
conclude that they constitute a unitary operator.  
Accordingly, I would reverse the judge's incorrect 
determinations that Berwind, Kentucky Berwind, and Jesse 
Branch were not operators under the Mine Act.


                              Marc Lincoln Marks, Commissioner


Commissioner Riley, concurring in part and dissenting in part:

     I concur in the majority opinion with respect to Parts 
II.A and II.B, regarding the revised "operator test." However, 
I respectfully dissent with respect to Part II.C, regarding 
the "unitary operator" theory.

     I do not believe it is necessary to reach the Secretary's
alternative theory that Berwind and its three subsidiaries
constitute a "unitary operator" in order to resolve this case.
Indeed, nothing is gained by application of the new
interpretation offered by the Secretary.[1] Even the majority
declines to apply it, either as originally briefed or as 
argued before the Commission.  Instead, the majority applies
the legal equivalent of CPR and attempts to resuscitate the 
unitary operator concept with a reworked theory of their own.  
The majority then argues collectively, and in individual 
separate opinions, that the Commission is bound to defer to
what each of them presumes the Secretary meant to say but did 
not.  For the following reasons, I decline to join my 
colleagues in their novel approach to statutory interpretation.

     As a specialized tribunal, created by Congress to 
"develop a uniform interpretation of the [Mine Act] law" 
(Hearing on the Nomination of Members of the Federal Mine 
Safety and Health Review Commission Before the Senate Comm. 
on Human Resources, 95th Cong. 1 (1978) ("Nomination 
Hearing")), the Commission receives cases such as this in a 
far different posture than courts of general jurisdiction.  
Nonetheless, the Commission has frequently reviewed the 
Secretary's interpretations of the Mine Act under the 
two-step formulation in Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 842-44
(1984).  First, the Commission, must "try to determine
congressional intent, using `traditional tools of statutory
construction.'"  NLRB v. United Food & Commercial Workers 
Union Local 23, 484 U.S. 112, 123 (1987) (quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 446 (1987)).  If the intent 
of Congress is indeed clear, the Commission must give effect 
to that intent.  See Chevron, 467 U.S. at 842-43. The 
Commission and the courts call this initial inquiry "Chevron 
I" analysis.  See, e.g., Coal Employment Project v. Dole, 
889 F.2d 1127, 1131 (1989).  If, however, legislation is 
"silent or ambiguous with respect to the specific issue" 
(Chevron, 467 U.S. at 843), the Commission or a court reviews 
the agency's interpretation as "`entitled to respect if based 
upon a reasonably defensible construction of the Act.'"  
Kenrich Petrochemical, Inc. v. NLRB, 893 F.2d 1468, 1476 
(3rd Cir. 1990), quoting NLRB v. Local 54, Hotel Employees & 
Restaurant Employees Int'l Union, 887 F.2d 28,29 (3d Cir. 
1989).  See also United Food, 484 U.S. at 123 ("where `the 
statute is silent or ambiguous,'" the Board's statutory
interpretation should be sustained if it is "rational and
consistent") (citations omitted).  This same analysis, known 
as Chevron II, is applied to Commission decisions by the court,
where they "generally need ask only whether the [Commission's]
interpretation is rational and consistent with the statute,
according deference to reasonably defensible constructions of
the Mine Act by the Commission."  Simpson v. FMSHRC, 842 F.2d 
453, 458 (1988) (internal quotations and citations omitted).

     The majority asserts that the meaning of the terms
"association" and "organization" as used in the statutory
definitions of the terms "person" and "operator" is open to
alternative interpretations, as reflected in dictionary
definitions.  Slip op. at 23.  The statutory language is not
clear as to whether more than one entity may constitute a 
single operator.  It also appears that Congress has not 
"directly spoken to the precise question at issue." Chevron, 
467 U.S. at 842. Thus, in the instant case, the Secretary 
has met her Chevron I burden, in raising questions about 
who is ultimately responsible for safety violations at a 
mine.  Her complex unitary operator theory, however, only 
complicates and protracts a case that can be more efficiently 
resolved on much simpler grounds.

     In any event, I must break from my colleagues in the
majority because I do not agree with their Chevron II analysis,
asserting that the Secretary's proffered interpretation must 
be accorded deference by this Commission. It is my belief that,
notwithstanding voluminous pleadings and the unprecedented 
amount of rehabilitation massaged into the Secretary's unitary 
operator theory by the majority, it is neither a rational and 
consistent nor a reasonably defensible construction meriting 
deference under the Chevron model.

     To support their Chevron II analysis, the Secretary and 
the majority rely on cases holding multiple entities liable as 
a "single employer" or "single enterprise" under at least three
other statutes, including the National Labor Relations Act
("NLRA"), 29 U.S.C. § 141 et seq.,[2] Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.,[3]
and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et
seq.[4]  S. Br. at 13-16; slip op. at 25-29, 32.  Chevron
deference is warranted in this instance, the Secretary argues,
because she is doing exactly what Congress left her the
discretion to do under the Mine Act.  S. Br. at 10-11.

     Reviewing the Secretary's various submissions in support 
of the unitary operator theory, one absolute goal obviously 
drives her position - that the combination of Berwind and its 
three subsidiaries, operating in concert, are a single entity, 
a "unitary operator" under the Mine Act.   She frequently and
unequivocally reiterates this objective which underlies her
statutory interpretation:  "[T]hat Berwind operated the Elmo 
Mine through Kentucky Berwind, Kyber, and Jesse Branch, i.e., 
that Berwind and its subsidiary corporations together 
constituted one unitary operator under Section 3(d) of the 
Act . . . ."  S. PDR at 9.  "The Secretary contends in this 
case that Berwind and its three subsidiary corporations 
constituted a unitary `operator' under the Mine Act . . . ."  
S. Br. at 12.  "[W]e would submit that all of them must 
nonetheless be determined to be operators . . . under this 
unitary operator theory which we derive from Section 3(f) 
of the Act." Oral Arg. Tr. 55. After pouring through every 
submission of the Secretary, I have been unable to find any 
equivocation compromising her position that all four entities 
must be held accountable as a single entity known as a unitary 
operator.   The majority concedes this point on page 36 of
their opinion.

     The language of Chevron provides direction that is 
helpful in deciding the case at hand.  "[T]he meaning of a 
word must be ascertained in the context of achieving 
particular objectives." Chevron, 467 U.S. at 861. If, as the 
majority asserts, the Commission is obligated to follow 
Chevron here, and the Secretary's stated objective is to 
find Berwind and its three subsidiary corporations to be a 
unitary "operator," we must examine, under this Chevron 
language, whether the Secretary's interpretation achieves 
that goal.

     The Commission must determine whether to defer to the
Secretary's interpretation in the factual context of this 
case according to the Secretary's stated reasons for seeking
deference. In this regard, I believe that the majority's 
declaration, "we consider the Secretary's unitary operator 
theory to be a gap-filling measure designed to flesh out the 
definition of an `operator' . . . entitled to deference 
because it is consistent with the purposes and policies of 
the [Mine] Act" (slip op. at 28) to be not only premature 
but, in the final analysis - wrong.

      As everyone involved with this proceeding is aware,
hundreds of pages of pleadings and evidentiary material from 
the various parties have accumulated in the voluminous record 
before us.  The  majority apparently believes that the 
Secretary has satisfied the Chevron II threshold. The 
Secretary's briefs, however, provide no comprehensive strategy 
to apply the unitary operator approach under the Mine Act to 
the legal and economic realities of the industry today.  
Unfortunately, the sheer volume of the record, including the 
Secretary's various arguments and many filings, taken as a 
whole, have a tendency, not to clarify her position, but to 
obscure it.

     The majority wastes little time and even less space 
trying to explain the Secretary's interpretation.  They 
apparently prefer the NLRA and Title VII models, and do not 
like the FLSA blueprint. Slip op. at 25-29, 32. Particularly 
troubling is the lack of analysis of language added from Lihli 
Fashions Corp. v. NLRB, a case not mentioned in any submission 
to the Commission.  Later, we learn that Lihli's contribution 
is to turn what is represented as a simple four-part test into 
as little as a one-part test if expedience demands it because 
the record comes up short on facts in a particular case:  
"To demonstrate unitary operator status, not every factor need 
be present, and no particular factor is controlling."  Slip op. 
at 33.

     Clearly, if the majority had spent more time examining 
and explaining its test for determining operator status (three
paragraphs and a footnote) (slip op. at 8-9 & n.4) as they did
defending the Secretary's deference arguments (more than seven
pages) (slip op. at 25-32), the additional scrutiny would have
forced the majority to come to grips with the dichotomy 
presented by two sentences in consecutive paragraphs of their 
opinion: "The Secretary argues that pursuant to her unitary 
operator theory, the record evidence compels the conclusion 
that Berwind and its wholly owned subsidiaries together 
constituted a single business enterprise . . . and therefore 
qualifies as a unitary operator under the Mine Act."  Slip op. 
at 35.  Followed by:  "A majority of the Commission concludes 
that Berwind and its three subsidiaries do not qualify as a 
unitary operator."  Id.  What is the import of these two 
juxtaposed sentences?  The Secretary asserts that something is 
true and the majority responds that the Secretary is mistaken. 
Unfortunately, the point upon which the majority says the 
Secretary is in error happens to be the underpinning for the 
Secretary's request for deference.

     When the test was finally applied by the majority (slip 
op. at 35-39), my colleagues should have recognized that 
something was seriously amiss.  The best they could accomplish 
with their ad hoc theory was to find that only two of the four 
entities cited by the Secretary qualify as a single unitary 
operator, far short of the objective the Secretary argued 
warranted such a determination.[5] The test, even in its most 
charitable application to this case by the majority, fails to 
achieve the Secretary's stated statutory purpose.

     The majority seems to be trying to graft a new prong onto
the Chevron test.  Their new prong, or Chevron III, should be 
called "Deference to Expediency."  It is apparently of no 
consequence to them that the agency asserting expertise 
entitling it to deference from the Commission and by the courts, 
even with the majority's assistance, has not articulated an 
interpretation that accomplishes the objectives the agency set 
out as its rationale for seeking deference.  They would defer 
anyway, whether or not the Secretary has presented a reasonable 
construction of the Mine Act.

     Contrary to the majority's perspective, the purposes and
goals of the Mine Act are not furthered by sympathetically
deferring when the Secretary comes before this Commission. 
The Secretary has a duty to deliver a workable theory.  The
majority's inability to find Berwind and its three subsidiaries 
to be an integrated unitary operator under the Mine Act as the 
Secretary argues, does not advance the Secretary's statutory 
goals in this case and therefore should doom her request for 
deference.  As it now stands, the majority decision depresses 
the jurisprudential bar so far that 50% has become a passing 
grade.  This outcome represents neither a rational and 
consistent, nor a reasonably defensible, construction worthy 
of deference under the Chevron model.

     C.   Deficiencies in the Unitary Operator Test

     The Secretary cites the standard basis for broad agency
authority:  "In cases arising under the Mine Act, it is 
important to remember that Congress intended the Mine Act to 
be liberally interpreted.  [As we are certainly aware,] the 
primary purpose of the Mine Act [is] to protect mining's most 
valuable resource - the miner, and [the Secretary reminds us 
that] Congress intended that the Act be expansively 
interpreted to achieve that purpose. It is also important[, 
we are told,] to remember that Congress specifically designed 
the definition of an operator . . . to be as broad as possible 
. . . ."  S. Br. at 11-12 (citations and internal quotations 
omitted). The use of this boilerplate would become problematic 
at the oral argument.

     On October 29, 1996, the Secretary filed with the 
Commission a statement opposing the motion of amici curiae 
to participate in oral argument. So certain was the Secretary 
that amici participation would serve no useful purpose that 
she asserted, "[i]t should be noted that under Commission Rule 
73, 29 C.F.R. § 2700.73, an entity seeking intervention must 
demonstrate [t]he reasons why [its] interest is not adequately 
represented by parties involved in the proceeding. The moving 
amici curiae have failed to allege, much less demonstrate, why 
the captioned respondents are unable fully and adequately to 
represent their interests at oral argument. Indeed, as is 
apparent from their brief, the moving amici curiae have not 
even cast the arguments made to the Commission from a 
perspective significantly different than that of the captioned 
respondents. . . ."  S. Statement in Opp'n to Mot. of Amici 
Curiae to Participate in Oral Argument at 2 (internal 
quotations omitted).  While it is clear that the Secretary was 
referring in this instance to amici for the Contestants, it 
is apparent that something offered to this Commission by amici 
regarding the unitary operator theory touched a raw nerve.

     The comment that provoked that reaction pertained to the
judge's second rationale for rejecting the unitary operator 
test, that it could "be used to extend jurisdiction without 
a logical limit." 18 FMSHRC at 233. This was rather forcefully 
rejected by the Secretary and glossed over by the majority, yet 
at some point the Secretary began to search for some definable 
limits for the application of her new theory.

     In their brief, the United Mine Workers of America 
("UMWA") attempted to "gap-fill" the Secretary's awkward 
unitary operator test by adding the qualification of "economic 
control."  UMWA Br. at 5-9.  Their approach would proscribe 
limits on the test by requiring that something other than the 
economic relationships of the parties be examined to address 
"the practical realities of trying to further safety and health 
in the mine industry." Id. at 5. Something in the Secretary's 
approach apparently troubled the UMWA and this concern was 
acknowledged by the Secretary when she too offered up her 
variation on this theme of "economic control" at oral argument. 
Oral Arg. Tr. 8, 10-15.

     Although the Secretary conceded under questioning that
"economic involvement" was not directly mentioned in the 
statute (Oral Arg. Tr. 10-11), her defense must be read as an 
attempt to put some stricture into this fledgling theory.  It 
is interesting that while rejecting the judge's contention of 
"jurisdiction without a logical limit" (18 FMSHRC at 233), 
the Secretary nevertheless saw a need to more specifically 
refine the test.

     Since the majority only cryptically mentions either
"economic control" or "economic involvement" (slip op. at 34 
n.34), it is difficult to fully appreciate their reasons for 
rejecting this issue.  What is apparent is that the majority 
has created the most dangerous kind of test imaginable - a 
test that is, simultaneously, too narrow to accomplish the 
Secretary's stated goals and too broad, so as to cause concern 
even to those who would, at first glance, be the most likely 
beneficiaries of the test.

     Before we can uphold the Secretary's interpretation of 
the Act as permitting the designation of two or more related 
entities as a "unitary operator," we must define precisely 
the elements of an appropriate test to determine if related 
entities constitute a single operator.  According to the 
Secretary's brief, her approach appears to be based upon the 
single employer doctrine developed under the NLRA and Title 
VII and the common enterprise standard developed under the 
FLSA.  See S. Br. at 12-16.  The Secretary's position in 
Berwind is that when an association or other organization 
functions in an interrelated manner for the purpose of 
extracting or processing coal or other mineral and controls 
or supervises a mine through an entity, which is a component 
part of such association or organization, the entire 
association or organization and each participating part of 
the association or organization is liable for safety and 
health violations that occur at the mine. See id. at 9-10.

     Why would that position alarm a labor union? What did 
they perceive that the majority does not? Perhaps it is that 
while the test fails to meet the Secretary's goals of finding 
Berwind and her three subsidiaries to be a unitary operator, 
it is so imprecisely drawn that they fear, not without some 
basis, of being tagged as a unitary operator in a future 
case.  Nonsense?  Not if one carefully reads the definitions 
of "person" contained in the two statutes on which the 
majority models its unitary operator test - the NLRA and Title 
VII.  Slip op. at 25 n.21.  Both statutes include in their 
definitions of person the terms labor organizations and labor 
unions. What guarantee can the majority or the Secretary give 
any labor organization that they too will not eventually be 
swept up in a jurisdictional blanket and be cited as  a 
unitary operator?  The answer is simple - none.  Thus, the
unitary operator theory, articulated by the majority, is not 
only ill-conceived, but it represents a step backward in 
enforcing the Mine Act.

     I regret that my colleagues have not rejected the current
request for us to rule on a theory that is still a work in
progress, opting instead to wait for a more appropriate 
vehicle through which to reexamine the need for a unitary 
operator theory. Building upon the preliminary steps taken 
here, the Secretary could bring a revised and improved 
theory before the Commission in another case.  Someday the 
Secretary may come before us with a case where all of the 
cited entities actually fit her own construction of the 
unitary operator theory.  Such a development would bring 
the Secretary's agency expertise (the linchpin of Chevron 
deference) in alignment with her statutory authority.
This, however, is not that case.

     Much more appropriate would be to consider such a 
far reaching proposal through rulemaking under the 
Administrative Procedure Act, 5 U.S.C. § 55 et. seq. The 
advent of a unitary  operator rule is a virtual sea change 
in the Secretary's approach to enforcement of the Mine Act, 
vastly expanding the circle of liability for violations.[6]  
So expansive is the potential impact of this proposal that 
it will likely engender widespread reorganization of 
corporate relationships throughout the  industry. Without 
a more comprehensive regulatory review by the Secretary to
better delineate the length and breadth of her unitary 
operator theory as well as give notice to landowners, holders 
of mineral rights, operators, contract miners, labor unions, 
and other organizations, or interested parties, it is 
inappropriate and unwise for the Commission to cobble 
together an imprecise substitute merely to save face for 
the Secretary.[7]


**FOOTNOTES**

     [1] The concept of substantial evidence has been 
defined as "more than a mere scintilla." Richardson, 402 U.S. 
at 401.

     [2] According  to  Dale's  April  20,  1993  memo,  Dale
notified the  president of Kentucky Berwind, Raymond Brainard, 
about  the  roof  fall,  who,  in  turn,  directed  Dale  to 
investigate.  JSF Ex. E.

     [3] Although the majority today espouses an operator 
test that focuses on substantial  involvement  rather  than 
the judge's day-to-day approach, my colleagues, in actuality, 
seem to be applying  a  more stringent test calling for  
day-to-day control. Certainly, the facts here indicate that
Kentucky Berwind's involvement with Elmo  No. 5 was far 
greater than a scintilla and should be considered substantial.

     [4] The Secretary argued to the judge that Jesse Branch
was as an independent contractor  performing services at the 
mine and as such "[fell] squarely into the Mine Act's  
definition  of an `operator.'"   S. Mot. Part. Sum. J. at 33 
n.27.  The judge failed to address the Secretary's independent 
contractor  argument. In her  brief  to  the  Commission, the 
Secretary also asserted that Jesse Branch is an operator  
under  the  Act  because  it  was an independent  contractor  
performing services at the Elmo mine. S. Br.  at  55  n.21.  
While the  majority  does  not  entertain the Secretary's 
independent contractor argument (slip op. at 16 n.16), I 
believe the Secretary's petition for review, which generally
disputed the judge's holding that Jesse Branch was not an
operator under  the  Act  (S.  PDR  at  1-2, 17), more than
adequately  encompasses  the  Secretary's  argument.  This  
Commission is generally willing to broadly construe  the  
petition for review to preserve parties' argument. See Fort 
Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511, 1514 (Sept. 
1997)  (construing  petition to implicitly  request reversal  
of  udge's  unwarrantable failure, negligence  and  section 
110(c) conclusions when  petition merely requested that 
Commission "reverse the judge's decision"); Rock of Ages  
Corp., 20 FMSHRC  106,  115  n.11  (Feb.  1998) (Commission
addressed unwarrantability determinations when petitioner
only generally raised negligence issue in PDR), aff'd in 
relevant part, 170  F.3d  148  (2d  Cir.  1999).  Thus, I 
believe the issue is  properly before the Commission and 
should be addressed.

     [5] On at least two occasions, Thomas  Falkie  visited
the Elmo mine. JSF 229. Bryan Ronck visited AA&W's corporate
office. JSF 229.

     [6]  Bryan Ronck, Berwind's vice president and chief
financial officer,  oversees  the  controller  for Kyber and
Jesse  Branch, Bob Bond.  JSF 34, 60, 74.

     [7] Senior MSHA  fficial Jack Tisdale explained the
integrated mining operation ("IMO") as a mining operation in
which a business entity that owns the right to extract the 
coal, markets the  coal,  and  capitalizes  the  operations. 
Tr.  330-33. The specialized  functions  of  the  IMO  are 
divided into departments including   sales,   operations,  
operations   support, finance, purchasing, legal, human  
resources,  and  corporate development. Tr. 330.

     [1] The  two  corporations  found  by  the  majority to
constitute a unitary operator, could more efficiently have
been cited under conventional notions of operator status.
With respect to  Kyber,  while  we  rejected  both  the  
Secretary's proffered "overall  control"  standard  as well 
as the judge's "day-to-day-control" interpretation, a 
substantial  majority of the Commission nonetheless found 
Kyber liable under our  revised "operator test." Thus, we 
agree with the Secretary that Kyber  is  already covered
under the Act's more traditional definition of operator.
Similarly,  Jesse  Branch  could  simply  have  been  cited  
as a contractor performing services at a mine, without having 
to tie up the resources of the  Commission  and  the  courts  
attempting to pioneer a new, complicated, and, in view of the
majority's modifications, apparently incomplete interpretation 
of the Act.

     [2] Section  2  of  the  NLRA contains the following
definitions:

               (1)  The  term   "person"   includes  one  or
                    more individuals  labor  organizations, 
                    partnerships,  associations, [or]
                    corporations . . . .

               (2)  The term "employer" includes any person
                    acting as an agent of an employer, directly 
                    or indirectly . . . .

29 U.S.C. § 152.

     [3]:  Section 701 of Title VII provides:

               (a)  The   term   "person"  includes  one  or
                    more individuals, governments,  .  .  .  
                    labor unions, partnerships, associations, 
                    corporations legal  representatives, mutual  
                    companies, joint-stock companies, trusts,
                    [or] unincorporated organizations . . . .

               (b)  The term "employer" means a person engaged
                    in an industry affecting commerce  who has 
                    fifteen or more employees . . ., and any  
                    agent of such a person . . . .

42 U.S.C. § 2000e.

     [4] The cases cited by the Secretary apply and interpret
section 3(r) of the FLSA which provides:

               "Enterprise" means the related activities 
          performed (either through unified  operation or 
          common control) by any  person or persons for
          a common business  purpose, and  includes  all
          such activities whether performed in one or more  
          establishments  or  by  one or more corporate
          or other organizational units . . . .

29 U.S.C. § 203(r).

     [5] The Secretary never raised the issue before the judge
or argued to the Commission  that  the  Kyber/Jesse Branch
relationship  alone  was a unitary operator, irrespective of
the status of the other cited parties.

     [6] The  majority  summarily dismisses the judge's
observations that  "`[p]arts of the industry have functioned
in this way for years and . . . the Secretary has never had a
policy of citing all corporate entities involved in  the  
operation of a mine for the production operator's violations.'"  
Slip op. at 29 (quoting 18  FMSHRC  at  233)  (emphasis in 
original).  To support their derision of the judge's accurate 
appraisal of the posture of this case, the majority cites Sunny  
Ridge  Mining  Co., 19 FMSHRC 254,  267  (Feb.1997),  for  the  
principle that the Secretary  is always free to change her mind 
without  notice  or  warning. Slip  op.  at  29. Unlike  Sunny 
Ridge, however, this is not  a fact-specific question about  
whether an inspector's allowing mining to continue in an area 
cited  for  a violation estopped the Secretary from  later  
characterizing the violation as significant and substantial 
due to a likelihood of serious injury.

     [7] The majority acknowledges "that this Commission has
the authority  to  interpret the Mine Act" (slip op.  at  33),
citing examples of where  that authority was exercised rather 
than how it is that the Commission has authority to "develop 
a uniform and comprehensive interpretation of the law. Such 
actions will provide guidance to the Secretary in enforcing 
the [A]ct and to the mining industry and miners in appreciating 
their responsibilities under the law." Nomination Hearing at 1. 
The Supreme Court reiterated this legislative  history  in 
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), observing 
that the Commission "was established as in independent-review 
body" for the purpose stated in the previous sentence. Id. at 
214.  The  Court  took  note of the Commission's authority under 
30 U.S.C. § 823(d)(2) to review "novel question[s] of  policy,"  
and "substantial question[s] of law, policy or discretion."  
Id. at 208 n.9.  Merely because the  Commission has such  
authority,  however, does  not  require,  or  even  make it
advisable, for the Commission to backstop the Secretary's
incomplete proposal with its own attempt to resolve such a
complicated issue. Especially where, as here, the majority
opinion is accompanied by five individual opinions, for a 
total of six  confusing  and contradictory impressions as to 
what a unitary operator is, might  be,  or isn't. In this 
case, the Secretary is in  the best position to consult with  
miners,  operators, state regulators  and  others  through  
rulemaking,  for  the purpose  of developing a complete, fair 
and workable theory that  will survive judicial review.

     D.   Due Process

     In addition, I also concur in Commissioner Beatty's
observations with respect to due process issues arising from
holding any party liable as a "unitary operator" without
Constitutionally-required notice.  Slip op. at 44-47.


                              James C. Riley, Commissioner


Commissioner Verheggen, dissenting:

     The sole issue in this case is whether the Contestants,
either individually or collectively, qualify as "operators" under
the Mine Act.  I find that none of the Contestants in these cases
can be considered operators of the Elmo No. 5 Mine and,
therefore, I respectfully dissent.[1]

     A.   Operator Status

     The term "operator" is defined under section 3(d) of the
Mine Act as "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."  30
U.S.C. § 802(d).  To be an operator, a given entity must exhibit
a substantial degree of involvement or participation in the
operation of the mine.  National Indus. Sand Ass'n v. Marshall,
601 F.2d 689, 701 (3d Cir. 1979) ("NISA") (designation of persons
as operators "requires substantial participation in the running
of the mine"); Old Dominion Power Co. v. Donovan, 772 F.2d 92, 97
(4th Cir. 1985) (adopting "substantial participation" analysis of
NISA).[2]  In accord with these cases, in W-P Coal Co., the
Commission found that a lessee who hired a contractor to mine
coal could be subject to liability under the Mine Act as an
operator because of its "substantial . . . involvement" in the
operation of the mine.  16 FMSHRC 1407, 1411 (July 1994).

     In this case, the judge held that to establish that an
entity is an operator under the Mine Act, the Secretary must
prove that the entity, "either directly or indirectly,
substantially participated in the operation, control, or
supervision of the day-to-day operations of the mine, or had the
authority to do so."  18 FMSHRC at 231.  Contestants, in essence,
agree with this approach.  K. Br. at 12-16; B. Resp. Br. at 9-11.
The Secretary, on the other hand, argues that the judge's
requirement of "day-to-day" participation in the mine has no
basis in the Mine Act or its legislative history.  Instead, the
Secretary claims that to qualify as an operator under section
3(d), "an entity must exercise or have the authority to exercise
substantial control over the overall operation of the mine."  S.
Br. at 29-37 (emphasis in original).[3]

     Both the judge's and the Secretary's tests fall wide of the
mark, as neither have any basis in the Mine Act.[4]  The correct
approach, in my view, is not whether there is "overall" or "day-
to-day" control, but rather whether a given entity's
participation or involvement in the operation of the mine is
substantial enough to establish that entity as an operator.  The
proper inquiry is whether the facts and circumstances of a
particular case indicate that an entity is engaged in the
supervision, control, and operation of a mine to a substantial
degree so as to render it an operator under the Mine Act.  This
requires a fact-specific examination of the record for all
indicia of supervision, control, and operation exercised by a
given entity, followed by a careful weighing of the indicia to
determine whether they are sufficiently substantial to establish
operator status.

     My colleagues adopt a similar approach in which they examine
the "totality of the circumstances," including an entity's
involvement in the mine's engineering, financial, production,
personnel, and safety matters.  Slip op. at 9-10.  I agree that
an evaluation of an entity's involvement in all of these areas is
important.  Such an evaluation, however, cannot be conducted in a
vacuum - as my colleagues attempt to do - outside the context of
the Mine Act and without reference to the Act's purpose and
intent.  Congress had a clear and specific reason for defining
"operator" in the Mine Act in terms of supervision and control.
It is only through supervision and control that an operator will
be able to create safe and healthful working conditions at a
mine, a responsibility the Mine Act places squarely on the
shoulders of the operator.

     Section 2(e) of the Act states that operators "have the
primary responsibility to prevent the existence of [unsafe and
unhealthful] conditions and practices in [the Nation's] mines."
30 U.S.C. § 801(e).  This responsibility is further described in
the Act's legislative history:

          Operators have the final responsibilities for
          affording safe and healthful workplaces for
          miners, and therefore, have the
          responsibility for developing and enforcing
          through appropriate disciplinary measures,
          effective safety programs that could prevent
          employees from engaging in unsafe and
          unhealthful activity.

S. Rep. No. 95-181, at 18 (1977), reprinted in Senate Subcomm. on
Labor, Comm. on Human Resources, 95th Cong., Legislative History
of the Federal Mine Safety and Health Act of 1977 ("Mine Act
Legis. Hist."), at 606 (1978).  Congress intended that operators
bear the ultimate responsibility under the Mine Act, creating, in
essence, a duty on the part of operators to provide a safe and
healthful working environment in compliance with the Act.  In
fact, so great is this duty that operators are held strictly
liable for violations of the Mine Act.  As the Fifth Circuit
held:

          [I]t is a common regulatory practice to
          impose a kind of strict liability on the
          employer as an incentive for him to take all
          practicable measures to ensure the workers'
          safety, the idea being that the employer is
          in a better position to make specific rules
          and to enforce them than the agency is.

Allied Prods. Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982).
This assumes, of course, that the employer is in a position to
take measures to ensure safety, and to ensure that those measures
are enforced.[5]  It necessarily follows that designating an
entity as an operator, and hence subjecting that entity to strict
liability for violations under the Mine Act, presupposes that
such an entity is in a position to secure a safe and healthful
working environment within the mine and to prevent potential
violations from occurring.

     Thus, in determining whether a given entity is an operator,
those facts in the record which serve as indications that the
entity is operating, controlling, or supervising the mine must be
evaluated in the context of the Mine Act's inextricable link
between operating a mine and the ability to affect health and
safety.  There must be some nexus between indications of an
entity's control and supervision and that entity's ability to
affect health and safety.

     Of course, countless entities and individuals can have some
effect on health and safety at a mine including, as Contestants
point out, "the miner's spouse who packs too large a lunch
causing the miner to doze off at the controls of his truck."  B.
Resp. Br. at 28 n.26.  However, simply because an individual or
entity may have an effect, however remote, on safety conditions
at a mine does not render it an operator.  Rather, as the
Secretary acknowledges, "only entities that have the ability to
substantially affect safety and health at a mine" should be
considered operators, S. Reply Br. at 2 (emphasis added) - i.e.,
only those who exercise some control over health and safety.
This approach is consistent with the underlying purpose and
intent of the Mine Act.  In sum, the appropriate inquiry as to
whether or not a given entity is an operator depends upon whether
that entity is substantially involved in the operation of the
mine, which is a question not only of the degree of involvement,
but also of the extent to which such involvement allows the
entity "to prevent the existence of [unsafe and unhealthful]
conditions and practices" at the mine.  30 U.S.C. § 801(e).

     The Commission's decision in W-P Coal Co. is illustrative.
In that case, the lessee of the mineral rights, W-P Coal Company
("W-P"), contracted out the operation of the mine to Top Kat
Mining, Inc. ("Top Kat").  16 FMSHRC at 1407-08.  The Commission
found that W-P was substantially involved in the mine's
engineering, financial, production, personnel, and safety
affairs.  Id. at 1411.  As the financial condition of Top Kat, as
well as safety conditions at the mine, began to deteriorate, W-P,
which had previously operated the mine, became increasingly
involved in the mine's operations.  See Top Kat Mining, Inc., 15
FMSHRC 682, 685-86 (Apr. 1993) (ALJ).  The Commission found:

          W-P prepared the mine plan, calculated mining
          projections, prepared and updated mine maps,
          contacted and visited the mine frequently to
          discuss production and other matters, waived
          certain fees owed by Top Kat, advanced funds
          to Top Kat, met with MSHA personnel regarding
          mine conditions and enforcement activity,
          participated in an inspection of the mine,
          and even arranged and attended a meeting of
          MSHA and Top Kat to discuss the increasing
          number of citations, inspections, and orders.

16 FMSHRC at 1411; see also id. at 1408.  In addition, W-P leased
equipment to the contractor and involved itself in the
contractor's personnel matters.  15 FMSHRC at 685.  W-P's
increasing and, ultimately, substantial involvement in the
operation of the mine - particularly substantial involvement in
the safety affairs of the mine, such as their direct dealings
with MSHA - provides a clear illustration of when an owner of
mineral rights crosses the line to become a full-fledged operator
under the Mine Act.

          1.   Kyber Coal Company

     I agree with my colleagues that implicit in the judge's
finding that Kyber exercised day-to-day control at the mine is a
finding that Kyber was substantially involved in the mine's
operation.  Slip op. at 11.  I find, however, that this finding
is not supported by substantial evidence.[6]  To the contrary,
Kyber's involvement in the operation of the mine can only be
described as minimal, beginning with the judge's finding that
"AA&W exercised most of the aspects of control and supervision at
the mine."  Specifically, the judge found:

          AA&W hired, fired, disciplined, trained,
          supervised, directed and paid its employees.
          AA&W developed and submitted all of the plans
          required under the Act and instituted all of
          the measures necessary to comply with dust
          and noise sampling programs.  For all
          practical purposes, AA&W furnished and
          maintained all of the equipment, machinery,
          tools and materials used in the mine, as well
          as all of the machinery, equipment and
          structures for stockpiling coal on the
          surface.  AA&W participated in all MSHA
          inspections and conferences.  AA&W decided to
          contest violations.  AA&W decided how to
          abate violations.  AA&W paid the civil
          penalties assessed for violations.  Finally,
          although Kyber could request that AA&W
          increase production, AA&W ultimately
          determined whether it would comply with such
          a request.  The debate . . . is whether the
          Contestants' involvement in what was left was
          sufficient to make them operators.

18 FMSHRC at 212-213 (citations omitted).

      Thus, in stark contrast to the lessee in W-P Coal, Kyber
had no involvement in AA&W's personnel matters, leased no
equipment to AA&W, provided no financing to AA&W, and played no
role in health and safety affairs at the mine.  With respect to
three of the five areas the majority claims to be relevant in
determining operator status - personnel, financial, and health
and safety matters - Kyber had no involvement whatsoever.
Moreover, the judge found that AA&W retained sufficient autonomy
over production such that Kyber's involvement did not amount to
an indication that Kyber was an operator.  Id. at 240.  Finally,
engineering services, map drafting, spad setting, and surveying
were all provided by Jesse Branch.  Id. at 241.  The judge's
remaining and sole basis for finding that Kyber was an operator,
a basis affirmed by the majority, was the fact that Kyber
retained "bottom line" authority for determining the direction of
mining.  Id. at 238.

     Control over the direction of mining may be one indication
of an entity's involvement in the operation of a mine.  However,
Kyber's control of the direction of mining, by means of
exercising its contractual right to reject AA&W's request to
deviate from the mining projections, was in fact limited.  The
judge found that:

          The Kyber-AA&W relationship was such that
          AA&W had considerable discretion to deviate
          from the projections for reasons of safety.
          Stump testified that he could depart from the
          projections if he encountered "an emergency."
          Akers essentially agreed that although AA&W
          had an obligation to consult with Kyber,
          Kyber never challenged AA&W's opinion that
          mining should be discontinued because of
          safety concerns such as poor roof.  Akers'
          testimony in this regard was supported by
          Looney.

18 FMSHRC at 238 (citations omitted).  Kyber could not reject
AA&W's request to mine less than the full extent of the mine
projections if "it [was] unsafe to mine those areas."  JSF 187
(emphasis added).[7]  While there is ample evidence in the record
on this limitation to Kyber's control, both the judge and my
colleagues fail to consider its relevance in the context of
determining the degree of Kyber's involvement in the health and
safety affairs of the mine, and whether any such involvement
could have enabled Kyber "to prevent the existence of [unsafe and
unhealthful] conditions and practices" at the mine.  30 U.S.C.
§ 801(e).

     The majority asserts that "Kyber's ultimate control over the
direction of mining[8] . . . had a direct and significant bearing
on the conditions encountered by miners," and that, consequently,
the company's actions "had a direct effect on the health and
safety of those miners."  Slip op. at 14.  Any number of factors,
however, can have an effect on the health and safety of miners,
such as barometric pressure or whether the seam being mined is
gassy.  The quality of parts used in mine machinery can have an
enormous effect on mine safety.  Even "the miner's spouse who
packs too large a lunch causing the miner to doze off at the
controls of his truck" (B. Resp. Br. at 28 n.26) has an effect on
safety.  But an entity's effect on safety is not necessarily
relevant to determining whether the entity is an operator under
the Mine Act.  The manufacturer of parts for a mine's machinery
certainly would not be considered an operator, despite the
potentially enormous effect of the quality of its work on mine
safety.  Instead, as W-P Coal clearly demonstrates, what is
relevant is an entity's involvement in health and safety affairs
of a mine.  Here, it is undisputed that Kyber played no role in
such matters as pre-shift examinations, MSHA inspections,
decisions to contest Mine Act violations, health and safety
training, and Mine Act record keeping.  Cf. W-P Coal, 16 FMSHRC
at 1411 (meeting with MSHA personnel and participation in an
inspection considered involvement in the mine's safety affairs).
The majority fails to grasp the significance of this important
distinction between effect on health and safety and substantial
involvement in the management of health and safety affairs.

     Because Kyber could not overrule AA&W's deviations from the
mine plan when they involved matters of safety and health,
Kyber's control over the direction of mining can not rise to the
level of substantial involvement for the purpose of determining
whether Kyber is an operator under the Mine Act.  The nexus
between Kyber's control in this regard and the company's ability
to affect health and safety conditions at the mine through its
control is too remote to support the judge's finding of
liability.  18 FMSHRC at 238.  In the absence of additional
indications of Kyber's involvement in the operation of the mine,
I find that the judge's determination that Kyber was an operator
on this basis alone (see id. at 238-40) is not supported by
substantial evidence.  Accordingly, I would reverse his
finding.[9]

     In an effort to salvage the judge's finding of Kyber's
substantial involvement in the operation of the mine, my
colleagues rely on additional evidence rejected by the judge in
his decision.[10]  First, they adopt the Secretary's argument,
rejected by the judge, that Kyber's contract with AA&W gave Kyber
at least the authority to approve and enforce the mine plan for
the Elmo No. 5 mine, which included, among other things, the
ventilation and roof control plans which affect the safety and
health of miners.  Slip op. at 12; S. Resp. Br. 22-23, 33.  Even
though Kyber never exercised its authority with respect to any
mine plan, the majority appears to believe that it is the mere
authority to control operations, and not the actual exercise of
the authority, that is dispositive.

      The Commission, however, looks to the actual relationship
between entities, rather than a contract between them, in order
to determine operator status.  Bulk Transp. Servs., Inc., 13
FMSHRC 1354, 1358 n.2 (Sept. 1991) ("Our focus is on the actual
relationships between the parties, and is not confined by the
terms of their contracts. . . .  Moreover, the determination of
whether a party is properly designated to be within the scope of
section 3(d) of the Act is not based upon the existence of a
contract, nor the terms of such a contract," emphasis added).[11]
The Secretary's assertion that Kyber's contract with AA&W gave
Kyber, through its never-exercised authority over mine plans, the
authority to select and approve the ventilation and roof control
plans (S. Resp. Br. at 22-23) seems disingenuous in light of the
fact that the Secretary specifically stipulated that AA&W was
responsible for developing, implementing, and submitting both the
ventilation and roof control plans.  JSF 168, 175.  Indeed, AA&W
developed, implemented, and submitted all plans that are required
under the Mine Act.  JSF 115.  Because "[t]here is no basis for
finding Kyber . . . had anything to do with mining plans at the
Elmo No. 5 Mine" (18 FMSHRC at 237 n.5), my colleagues err in
finding Kyber's contract with AA&W to be an indication of Kyber's
operator status.

     My colleagues also assert that Kyber's status as an operator
"is further supported by other evidence of Kyber's substantial
involvement in decisions concerning the ways in which mining was
conducted and the quality and quantity of coal produced at the
mine."  Slip op. at 12.  Yet, the judge rejected any claim that
Kyber was substantially involved in production at the Elmo No. 5
Mine.  18 FMSHRC at 240.  Among other things, the judge rejected
the argument that AA&W's responses to Kyber's requests for
additional hours of operation were an indication of Kyber's
operator status, crediting the testimony of AA&W employees that
AA&W did not always comply with those requests.  Id.  According
to the judge, "[c]omplying with Kyber's requests was clearly in
AA&W's self interest (Tr. 291-292), and AA&W retained its
autonomy to decide whether or not to accede."  Id.  In addition,
it is undisputed that if Kyber requested additional coal
production to meet demand, "AA&W ultimately determined whether it
would comply with [Kyber's] request."  JSF 105.  Although the
contract did contain a minimum production requirement, it had no
effect on daily production because AA&W produced coal far in
excess of the required amount.  18 FMSHRC at 240.  Thus, to the
extent Kyber had any influence over production at the mine, it
never rose to the level of control, since AA&W ultimately decided
when and how much coal to produce.[12]


     Oddly, the only evidence cited by the majority of Kyber's
actual involvement in production is an incident involving
blasting at the neighboring Corvette mine.  Slip op. at 12-13 &
n.11. When blasting at the nearby Corvette mine apparently caused
a roof fall at the Elmo No. 5 Mine, Kentucky Berwind intervened
to resolve the problem.[13]  I find it peculiar that the majority
would cite this incident as an example of Kyber's involvement in
production since it was Kentucky Berwind, not Kyber, that
intervened between AA&W and the operator of the Corvette mine.
17 FMSHRC at 700.  The extent of Kyber's involvement was
notifying Kentucky Berwind of the problem and suggesting the
solution that Corvette should move its blasting operations.  Id.
In fact, not even the Secretary has argued in this case that this
incident is evidence of Kyber's control of the mine.  Rather, the
Secretary only argued this incident demonstrated Kentucky
Berwind's involvement, an argument rejected by the judge.[14]

     The majority's reliance on this incident as evidence of
operator status is even more peculiar given the fact that my
colleagues, elsewhere in their opinion, find that Kentucky
Berwind's involvement in the incident - which was far more
significant than Kyber's - was insufficient to establish operator
status.  Slip op. at 20.  Indeed, it defies my comprehension how
this incident suggests Kyber was "substantial[ly] involv[ed] in
decisions concerning the ways in which mining was conducted and
the quality and quantity of coal produced at the mine."  Id. at
12.

     My colleagues also rely on Kyber's payment of the initial
mine development costs as evidence of Kyber's substantial
involvement in the mine.  Id. at 15.  Again, the judge properly
rejected Kyber's involvement in the development of the mine as a
basis for finding the company an operator, citing it as
"irrelevant" to the question of Kyber's operator status since
development of the mine occurred before the mine opened and AA&W
became the on-site operator.  17 FMSHRC at 708.  As the judge
correctly stated, "[t]he question is whether the Contestants
actually were operators of the mine on November 30, 1993," the
date the citations were issued.  Id.  My colleagues also cite as
evidence of Kyber's involvement in the mine the fact that Kyber
paid Jesse Branch for map drafting and surveying services.  Slip
op. at 15.  What they neglect to mention, however, is that AA&W
first paid Kyber ten cents for each ton of coal mined for those
very services.  JSF 151.[15]

     In short, the evidence of Kyber's involvement in the mine
amounts to, at most, limited control over the direction of
mining, consistent with Kyber's status as lessee, and its never-
used authority to approve the mine plan.  This hardly makes Kyber
an operator.  Taken as a whole, Kyber's control or supervision of
the Elmo No. 5 mine, limited as it was, certainly did not rise to
the level of involvement of the lessee in W-P Coal, which had
extensive involvement in financial, production, personnel, and
safety and health matters at the mine.  With virtually no
involvement in any of these areas, it can hardly be said that
Kyber's involvement in the mine was substantial, let alone that
it was substantially involved in safety and health affairs at the
mine.  Kyber's involvement in the mine, which did not include any
involvement in the mine's safety and health affairs, is simply
too remote to support a finding that would impose strict
liability upon the company under the Mine Act.  Accordingly, I
would reverse the judge's finding that Kyber was an operator of
the Elmo No. 5 Mine.

          2.   Jesse Branch

     I find that substantial evidence supports the judge's
conclusion that Jesse Branch was not an operator.  18 FMSHRC at
242-43.  The company's involvement in the operation of the mine
was limited to engineering services, which consisted primarily of
drafting maps, surveying, setting spads, and inspecting surface
drainage ponds.  17 FMSHRC at 711-712.  Unlike the lessee in W-P
Coal, Jesse Branch had no additional involvement whatsoever in
the mine's financial, production, personnel, or safety matters.
Cf. W-P Coal, 16 FMSHRC at 1407.

     Simply because Jesse Branch's role may have been "critical"
(S. Br. at 53) or "important" (slip op. at 17) to the operation
of the mine does not mean its role was substantial for purposes
of determining whether the company was an operator in these
proceedings.  As the judge correctly noted, most on-site
operators like AA&W lack the capacity to perform such engineering
functions as surveying and spad setting, and frequently contract
for such services.  17 FMSHRC at 710-12.  By agreeing to provide
these services, Jesse Branch did not thereby assume any control
over the operation of the mine.  Indeed, the judge found that
while Jesse Branch participated in drafting and mapping the mine
projections, there was no indication that Jesse Branch "denied
AA&W autonomy of decision-making within the confines of the
projections or reserved for itself the authority for such
decision-making."  18 FMSHRC at 242.[16]  As such, I would affirm
the judge's conclusion that Jesse Branch was not an operator of
the mine.[17]

          3.   Kentucky Berwind

     I find that the judge's conclusion that Kentucky Berwind was
not an operator because its level of involvement in the mine did
not rise to the level of statutory control is supported by
substantial evidence.  17 FMSHRC at 715.  Kentucky Berwind had no
involvement in the mine's engineering, personnel, or safety
matters, nor did it have any financial dealings with AA&W.  18
FMSHRC at 236.  To the extent Kentucky Berwind retained the
authority to control production at the mine through its lease
agreement, either by means of imposing lost coal penalties,
participating in decisions concerning mining direction, or
otherwise, there is little or no evidence such authority was ever
exercised.  Again, the proper focus is upon the actual
relationship between Kentucky Berwind and AA&W, rather than the
terms of the contract between Kentucky Berwind and Kyber, in
determining operator status.  See Bulk Transp., 13 FMSHRC at 1358
n.2.  In that regard, the judge found that Kentucky Berwind's
actions with respect to the mine were consistent with, and
nothing more than, the conduct one would expect of an owner of
the mineral rights protecting its interests.  18 FMSHRC at 235-
36.

     I agree with my colleagues' assessment that "[t]he
Secretary's argument that Kentucky Berwind is an operator appears
to be based primarily on the authority it possessed as an owner
of  mineral rights at the Elmo No. 5 Mine."  Slip. op at 18.  Yet
during oral argument, the Secretary asserted that mere ownership
of a mineral right was not sufficient to establish operator
status.  Oral Arg. Tr. 11.  Unless the Secretary is prepared to
declare all owners or lessors of mineral rights as operators -
which she apparently is not - Kentucky Berwind cannot be
considered an operator of the mine.  Accordingly, I would affirm
the judge's decision.

          4.   Berwind

     The judge held that Berwind was not an operator, based on
his finding that Berwind had "virtually nothing" to do with the
operation of the mine.  18 FMSHRC at 234.  I find this conclusion
amply supported by substantial evidence.  There is no evidence
that Berwind was involved in the mine's engineering, financial,
production, personnel, or health and safety affairs.   Cf. W-P
Coal, 16 FMSHRC at 1407.  While Berwind provided the capital
necessary for its subsidiaries to operate (18 FMSHRC at 234),
there is no evidence that this financing extended to the operator
of the mine, AA&W.  Moreover, the judge found that contacts
between Berwind and AA&W, such as they were, were "a long way"
from substantial participation in the operation of the mine.
17 FMSHRC at 715-16.  Indeed, the Secretary concedes that Berwind
did not have any direct control of the mine, but that its control
was derived from its relationship with its subsidiaries, which in
turn controlled the operation of the mine.  S. Br. at 6.  Because
I find that none of those subsidiaries were substantially
involved in the operation of the mine, it necessarily follows
that neither was Berwind.  I would therefore affirm the judge's
finding that Berwind was not an operator of the Elmo No. 5 Mine.

     B.   Unitary Operator Theory

               In W-P Coal, the Secretary attempted to hold the
operator
liable under a "co-operator" theory of liability.  16 FMSHRC at
1409.  After finding that "W-P was sufficiently involved with the
mine to support the Secretary's decision to proceed against [the
company]," the Commission wisely rejected the Secretary's
alternative theory.  Id. at 1411.  First, the Commission noted
that the term "co-operator" "does not appear in the statute."
Id.  The Commission also stated:  "existing case law adequately
addresses liability issues where owner-operators and independent
contractors are involved."  Id.

     I find both of these statements still true today with
respect to the majority's effort to use this case to create a new
form of liability under the Mine Act, unitary operator liability.
I begin my analysis of this question by noting the Supreme
Court's recent reaffirmation of the "general principle of
corporate law deeply `ingrained in our economic and legal
systems' that a parent corporation (so-called because of control
through ownership of another corporation's stock) is not liable
for the acts of its subsidiaries."  United States v. Bestfoods,
524 U.S. 51, 61 (1998) (citations omitted).[18]  The Court stated
that "it is hornbook law that `the exercise of the "control"
which stock ownership gives to the stockholders . . . will not
create liability beyond the assets of the subsidiary.'"  Id. at
61-62 (citations omitted).  The "hornbook law" to which the Court
was referring is, of course, state law:  "corporations being
creatures of state law, that law generally governs their
affairs."  18 Am. Jur. 2d Corporations § 17, at 812 (1985).

     The majority's new unitary theory is an exception to the
general rule of the separate existence of corporate entities, and
is thus an attempt to modify the general principles of state
corporate law so forcefully reiterated in Bestfoods.  In their
rush to rewrite corporate law, however, the majority has lost
sight of the fundamental principle that "in deciding if federal
law pre-empts state law," federal courts "`start with the
assumption that the historic police powers of the States [are]
not to be superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.'"  Milwaukee v. Illinois, 451
U.S. 304, 316 (1981).  Similarly, in Bestfoods, the Court stated
that "nothing in CERCLA purports to reject this bedrock principle
[of the separate existence of corporate entities], and against
this venerable common-law backdrop, the congressional silence is
audible."  524 U.S. at 62.  The Court went on to observe:

          CERCLA is thus like many another
          congressional enactment in giving no
          indication "that the entire corpus of state
          corporation law is to be replaced simply
          because a plaintiff's cause of action is
          based upon a federal statute," and the
          failure of the statute to speak to a matter
          as fundamental as the liability implications
          of corporate ownership demands application of
          the rule that "[i]n order to abrogate a
          common-law principle, the statute must speak
          directly to the question addressed by the
          common law."

Id. at 63 (citations omitted, emphasis added).[19]  Similarly, in
United States v. Texas, the Court noted the "longstanding . . .
principle that `[s]tatutes which invade the common law . . . are
to be read with a presumption favoring the retention of
long-established and familiar principles, except when a statutory
purpose to the contrary is evident.'"  507 U.S. 529, 534 (1993)
(citations omitted).

     The majority asserts that its new unitary operator theory is
"consistent with well established" and "settled" "principles of
corporation law."  Slip op. at 30 and n.29.  Yet I find that in
their opinion, all they do is mention a few principles - piercing
the corporate veil (id. at 30-31 & n.29), the "identity rule"
(id. at 31), and alter ego theory (id. at 31-32) - without any
explanation of why these principles apply to or support their
theory.  In fact, I am unable to divine what, if any, basis their
theory has in traditional corporate law.  The cryptic nature of
the majority's opinion on this point may be due to the fact that
the principles they mention simply do not apply to this case in
which the meaning of a federal statute is at issue.

     For example, the majority mentions piercing the corporate
veil.  In fact, they appear to embrace this particular principle
when they state that their theory is "consistent with well
established principles of corporate law," then quote the
following passage from an Eighth Circuit case in support of this
statement:  "Corporate law recognizes situations in which it is
appropriate to `pierce the veil' of separate affiliates."  Id. at
30-31 (quoting Package Serv. Co. v. NLRB, 113 F.3d at 847).  Yet
the Secretary has expressly disclaimed any intent to pierce the
corporate veil in this case.  S. Br. at 26 n.12.  Moreover,
piercing the corporate veil has traditionally been used where
recognizing the boundaries around corporate entities "would work
fraud or injustice."  Taylor v. Standard Gas & Elec. Co., 306
U.S. 307, 322 (1939).  As the Supreme Court stated in Bestfoods,
"the corporate veil may be pierced . . . when . . . the corporate
form would otherwise be misused to accomplish certain wrongful
purposes, most notably fraud."  524 U.S. at 62; see also 18 Am.
Jur. 2d Corporations § 58, at 868-69 ("It has been said that any
court must start from the general rule that the corporate entity
should be recognized and upheld, unless specific, unusual
circumstances call for an exception; these circumstances arise
where the corporation is used principally as an intermediary to
perpetrate fraud or promote injustice.").  Here, the record
contains not even a hint that Berwind or any of its subsidiaries
organized themselves the way they did for fraudulent or improper
purposes.[20]

     The majority also mentions alter ego theory and the identity
rule.  These theories, however, are premised on a degree of
"unity of interest and ownership" so great "that the
individuality or separateness of the two corporations has
ceased," or "that the independence of the corporation has in
effect ceased or had never begun."  18 Am. Jur. 2d Corporations
§ 56, at 861-62.  I do not find that the facts of this case can
be twisted into any such scenario.  Indeed, if the affairs of
Berwind and its subsidiaries had been so intertwined, and
particularly if the safety affairs of the Elmo No. 5 Mine had
been managed at all levels of the Berwind corporate structure,
then the majority would not have to resort to their ill-advised
theory to find the companies liable.  More to the point, however,
is that despite the great emphasis the majority places on alter
ego theory, their four-part test hardly can be said to bear any
resemblance to that theory.  See slip op. at 33.

     What I see the majority doing is trying to camouflage the
weaknesses of their rationale behind the talismanic invocation of
a few principles of corporate law, and cases construing those
principles, with no explanation of how the principles or cases
apply to their new theory.  Incantation, however, is no
substitute for reasoned analysis.

     Regarding whether the Mine Act can be interpreted to allow
the Secretary to cite many operators as one "unitary operator,"
the majority concludes "that the statutory language on the
question whether more than one entity may constitute a single
operator is far from clear, and that Congress has not `directly
spoken to the precise question at issue.'" Id. at 25 (quoting
Chevron, 467 U.S. at 842).[21]  My colleagues then defer to the
Secretary's interpretation of the Mine Act that boldly
circumvents the common law of corporations by creating out of
whole cloth "operators" under the Mine Act that exist only for
the purpose of broadening the Secretary's prosecutorial power.

     I reject the majority's decision to defer to the Secretary
on this question.  The unitary operator liability created by the
majority is in direct conflict with the common law of
corporations by grafting onto that body of law a new form of
corporate organization:  a super-corporation consisting of any
number of separate entities joined to create a larger whole.
Nowhere in the common law of corporations is there such an
entity.  In the absence of any provision in the Mine Act that
directly and unequivocally abrogates the common law principles of
corporate structure, the majority's ill-advised attempt to
rewrite the common law must fail.  Their new theory must have a
clear and unequivocal statutory basis - which it most clearly
does not have.  Bestfoods, 524 U.S. at 62-63.

     Indeed, the Secretary's attempts to justify her new theory
are unavailing.  No matter how plausible or reasonable her
arguments might seem at first blush (and I do not believe they
are the least bit plausible), under Bestfoods, deference does not
even arise because of the even more fundamental principle that
any statutory abrogation of a common law principle must be
explicitly, directly, and unequivocally set forth on the
statute's face.  Id.  Yet here, as the majority concedes, all we
have is an interpretive gloss.  The majority has formulated a
rule of liability, in concert with the Secretary, that is at odds
with the common law of corporations - and controlling Supreme
Court precedent under which only Congress can create such
liability.

     I would hasten to add that I am not in favor of blind fealty
to corporate forms.  In the event a corporation attempts to
shield itself behind a sham corporate structure, the Secretary
could pierce the corporate veil.  Indeed, I am at a loss as to
why the Secretary has sought to establish unitary operator
liability under the Mine Act.  She has advanced few, if any,
reasons why this Commission should take the extraordinary step of
casting aside the common law in favor of her interpretation of
section 3 of the Act - notwithstanding the fact that any such
arguments would probably either be unavailing because at odds
with Bestfoods or better addressed under the existing law of
operator status and piercing the corporate veil.

     But even assuming arguendo that the majority's acceptance of
unitary theory was not at odds with the bedrock principles
reaffirmed in Bestfoods, their decision is still a house of cards
that fails to hold up to any degree of scrutiny.  Although the
majority concedes that the statutes on which it relies - the NLRA
and Title VII - are "concerned with regulation of employment
relations" (slip op. at 26 n.22),[22] they nevertheless forge
ahead.  But at issue here is a term - "operator" - that has
nothing to do with employment relations.  The majority confuses
apples with oranges, despite the fact that other more analogous
statutes include the term "operator" rather than "employer,"
including CERCLA, and the Surface Mining Control and Reclamation
Act, 30 U.S.C. § 1201 et seq.  The majority cites several Mine
Act cases in which the Commission has turned to the NLRA and
Title VII for guidance (slip op. at 26), yet all the cases they
cite involve employment relations, either in the context of Mine
Act discrimination or compensation.  These cases are thus
singularly irrelevant to the questions posed in this case.

     I am also concerned that, in applying unitary theory, the
majority has essentially passed upon a question that was never
before the Administrative Law Judge.  In this case, the Secretary
sought to hold liable a unitary operator consisting of Berwind,
Kentucky Berwind, Kyber, and Jesse Branch.  The judge rejected
this attempt.  He never considered whether any other permutations
of these four entities might be a unitary operator.  Yet the
majority nevertheless does just that when it finds that Kyber and
Jesse Branch are a unitary operator.  They do so without offering
any justification whatsoever for passing on a question on which
the judge had no opportunity to pass.  Beech Fork Processing,
Inc., 14 FMSHRC 1316, 1319-21 (Aug. 1992).

     C.   Conclusion

     My greatest concern in dissent is that I see the majority's
decision as a setback to the orderly administration of the Mine
Act.  First, I find their treatment of operator liability full of
confusion and contradiction.  They arrive at a rule which appears
almost metaphysical under which we must not focus on "separate
elements" of an operator's control of a mine, but must consider
"the totality of circumstances, that is, [an operator's] overall
relationship with [a] mine" (slip op. at 16, emphasis added) -
which is something presumably greater than the sum of various
indicia of control which may be contained in a particular record.
I find this rule unworkable, if not fanciful.

     Second, the majority's new unitary operator theory sprung
from a Secretarial position that appeared to change at every
juncture.  Indeed, the Secretary was offering substantive
refinements to her theory even as late as the oral argument
before the Commission.  Oral Arg. Tr. 9; see supra note 3 of my
opinion.  The majority nevertheless has deferred to the
Secretary's moving target of a theory in principle, and has
proceeded to fill in the various gaps on an ad hoc basis.  Yet
even then, they stumble.  They have set forth their new unitary
theory in the most fractured opinion I have encountered in my
tenure as a Commissioner, and are then unable to come to an
effective application of the theory, not only because of the
notice problems recognized by Commissioner Beatty (with which I
agree in principle), but also because no majority of
Commissioners is able to decide which permutation of defendants
to hold liable under the theory.[23]  Far from contributing to
the development of "a uniform and comprehensive interpretation of
the [Mine Act] . . . [to] provide guidance to the Secretary in
enforcing the act and to the mining industry and miners in
appreciating their responsibilities under the law," Nomination
Hearing Before the Senate Committee on Human Resources, 95th
Cong. at 1 (1978), I believe that the majority's decision sows
the seeds of confusion.  I believe that in this case, the wheels
of justice have now, after six years of litigation, become
hopelessly mired in a morass of legal mumbo jumbo.


**FOOTNOTES**

     [1]  While  I  agree  in result with my colleagues in  the
majority that Berwind, Kentucky Berwind, and Jesse Branch are not
"operators" under the Mine Act,  I  write  separately  because  I
reach  my  conclusions  as  to  these  entities using a different
analytical approach, as discussed infra.

     [2] See also 44 Fed. Reg. 47,746,  47,748  (1979)  (MSHA's
proposed   independent   contractor   rule   citing  "substantial
participation" language).

     [3] During  oral  argument,  the  Secretary  amended  her
"overall control" test to include an additional  requirement that
the entity have "an economic involvement at the mine" in order to
qualify as an operator.  Oral Arg. Tr. 9.  The ostensible purpose
for  this  change was to ensure that labor organizations  do  not
fall within the definition of "operator" (id. at 10-11), although
Contestants   point   to   a   number  of  ways  in  which  labor
organizations can be economically  involved in the operation of a
mine.  B. Resp. to UMWA/USWA Brs. at 12-13.

     [4]   It  is  unclear  whether  the  majority  rejects  the
Secretary's  "overall"  control  requirement,   even  though  the
requirement has no legal basis.  First, my colleagues  decline to
be "constrained" by the Secretary's test.  Slip op. at 9.   Later
in  their  opinion,  however,  they state that it is error not to
consider a party's "overall relationship  with the mine."  Id. at
16 (emphasis added).

     [5]  See S. Rep No. 95-181, at 18, Mine Act Legis. Hist. at
606 ("this duty places the primary responsibility for providing a
safe and healthful working environment on the  operator,  who, of
course, ultimately has the authority to operate the mine").

     [6]   When  the  Commission  reviews factual determinations
made by its judges, it applies the substantial evidence test.  30
U.S.C.  § 823(d)(2)(A)(ii)(I).   "Substantial   evidence"   means
"`such  relevant  evidence  as  a reasonable mind might accept as
adequate  to  support  [the judge's]  conclusion.'"  Rochester  &
Pittsburgh Coal Co., 11  FMSHRC  2159,  2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

     [7]  As the judge's finding and the  stipulations indicate,
Kyber  did  not  have  exclusive  control over the  direction  of
mining, unlike the independent contractor  in  Otis Elevator Co.,
which did have "`exclusive control over the safety  of  the  mine
elevators.'"  See slip op. at 14 (citing 11 FMSHRC at 1902).

     [8]    The   majority  overstates  the  extent  of  Kyber's
authority  because,  as   a  practical  matter,  control  of  the
direction of mining was jointly  exercised by Kyber and AA&W.  As
the parties stipulated, "[p]rior to initiating mining operations,
[AA&W]  and  [Kyber]  developed initial  mining  projections  for
mining at the Elmo mine.  [AA&W]  and  [Kyber]  jointly developed
subsequent mining projections on an `as needed' basis  during the
course  of  mining."  JSF 181 (emphasis added). The parties  also
stipulated that  "[o]nce  projections were established and agreed
upon  by  both [AA&W] and [Kyber],  any  modifications  to  those
projections   we   made   only   upon   joint   consultation  and
determination  of  both  [AA&W] and [Kyber]."  JSF 179  (emphasis
added).

     [9]   My  colleagues  agree  with  the  judge  that  "Kyber
retained  more control over the  direction  of  mining  than  the
typical mine  owner or lessee" (slip op. at 11), but neither they
nor the judge cite  any  evidence  in  the record to support this
finding.  If anything, the record indicates  that  the  agreement
between  Kyber  and AA&W was typical for the industry.  Tr.  573,
579; 18 FMSHRC at  230.   In  fact,  the  contract  was  based on
contracts  in general use throughout the industry.  17 FMSHRC  at
690; slip op.  at  3  n.1.   Even  assuming arguendo that Kyber's
control of the direction of mining was  absolute,  it is unlikely
Kyber could be considered an operator on this basis  alone since,
as   the   majority  puts  it,  "no  particular  factor  will  be
controlling"  in  determining  whether  an entity is an operator.
Slip op. at 10.

     [10]   In so doing, my colleagues abandon  the  substantial
evidence test,  rejecting  specific findings of the judge without
pointing to a single fact the  "fairly  detracts" from the weight
of evidence that supports the judge's finding.   Midwest Material
Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997).

     [11]    In  a  bizarre  twist,  the  majority  cites   Bulk
Transportation in support of its assertion that the mere terms of
Kyber's contract is indicative of the company's status.  Slip op.
at 12-13 (stating  that  Kyber's  "contractual authority over the
mine plan may be considered by the  Commission as evidence of the
actual   relationship   between   Kyber   and    AA&W").     Bulk
Transportation,  however,  directly  contradicts  the  majority's
position.

     [12]   As for the manner of mining - or the "ways in  which
mining  was conducted,"  to  use  the  majority's  phrase  -  the
Secretary   argues  that  a  single  instance  involving  Kyber's
objection to  AA&W's  proposal to use a continuous mining machine
is evidence of Kyber's  control  over  the  manner  of mining (S.
Resp.  Br.  at  31-32),  notwithstanding the parties' stipulation
that,  except  on  very limited  occasions,  AA&W  furnished  and
maintained all equipment,  machinery,  and materials at the mine.
JSF 136.  The judge properly rejected the incident as evidence of
Kyber's substantial control of the mine.   17 FMSHRC at 710.  The
majority  also  claims Kyber was substantially  involved  in  the
"ways in which mining  was  conducted" (slip op. at 12), yet they
cite  no  evidence  in  the record  to  support  this  assertion.
Indeed, the judge specifically  found  that  "AA&W determined the
manner in which coal was mined."  17 FMSHRC at 695.

     [13]  Kentucky Berwind leased separate coal  reserves  in a
coal  seam  located  above  the  Elmo  No. 5 Mine to an unrelated
company, which then contracted with Corvette  Mining  Company for
the  operation of a surface mine to extract the coal.  17  FMSHRC
at 699.  On April 8, 1993, a roof fall occurred at the Elmo No. 5
Mine,  which  was  apparently  caused by blasting at the Corvette
mine.  Id. at 700.  AA&W notified  Kyber  of the roof fall, which
in  turn  notified  Kentucky Berwind.  Id.  Following  additional
roof fall problems caused  by  blasting  at  the  Corvette  mine,
Kentucky Berwind officials visited the Elmo No. 5 Mine to examine
affected  areas of the roof.  Id.  On April 12, 1993, Steve Dale,
the chief mine  inspector  and  land manager of Kentucky Berwind,
and two other Kentucky Berwind mine  inspectors  visited  the two
mines  and met with a Corvette official, AA&W vice president  Jim
Akers, and  a  representative of the Kentucky Division of Surface
Mine Reclamation  Enforcement.  Id.  Kyber president Jimmy Walker
suggested that, in  order  to  alleviate  the  problem,  Corvette
should  move  its  blasting  operations  500  feet  away from the
location  it  had  been using.  Id.; JSF 23, 301.  Dale  endorsed
this solution and showed  Corvette where its operations should be
moved.  17 FMSHRC at 700; JSF 301.

     [14]  The judge found:

          There is no indication  that Kentucky Berwind
          ordered AA&W to change anything  with  regard
          to  its  daily  operations as a result of the
          Corvette incident.   Moreover,  it  was  only
          natural  that  Kentucky  Berwind, as owner of
          the  coal  reserves mined by  both  AA&W  and
          Corvette, would have an interest in trying to
          assist both  operators  so  that they did not
          interfere  with  one  anothers'   operations.
          That    interest   and   Kentucky   Berwind's
          resulting  role in the incident do not equate
          to statutory control and supervision.

17 FMSHRC at 715.  The same findings hold true for Kyber as well.

     [15]  My colleagues  also  suggest  that  Kyber's  role  in
selecting  a  safe operator for the mine is somehow indicative of
Kyber's status  as  an  operator.   Slip  op  at  14 n.12.  It is
difficult  to conceive that a lessee's judicious selection  of  a
safe operator - as opposed to, say, picking a name out of a hat -
thereby imbues  the  lessee with yet another indicia of ownership
status.

     [16]  The judge  properly declined to draw any inference of
operator status from the  relationship  between  Kyber  and Jesse
Branch.   17  FMSHRC  at  712.   Any  such  relationship, whether
through  interlocking  officers or shared office  space,  has  no
bearing  as  to whether Jesse  Branch,  standing  alone,  was  an
operator of the mine.

     [17]  I  agree  with my colleagues in the majority that the
Secretary failed to preserve  on  appeal  her argument that Jesse
Branch could still be found to be an operator  of the mine on the
alternative  ground that it was an independent contractor.   Slip
op. at 16 n.16.   I  note, however, that the Commission has never
held that an independent contractor is liable for violations that
arise from conduct unrelated to its activities at the mine.

     [18]:  At issue in  Bestfoods  was  the  potential liability
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C. § 9601 et seq.  ("CERCLA")  of a
parent corporation as an operator for the clean-up of a hazardous
waste  site  owned  or  operated by one of its subsidiaries.  524
U.S. at 60.

     [19]  The majority attempts to distinguish Bestfoods on the
grounds that the case arose  under  CERCLA.  Slip op. at 30 n.29.
The rule reiterated by the Court in Bestfoods is, however, one of
general  applicability,  as  the  Supreme   Court  cases  I  cite
demonstrate.  See also Tri-State Steel Constr. Co. v. Herman, 164
F.3d 973, 979 (6th Cir. 1999) (citing Bestfoods  on this point in
holding that a company's eligibility for an award  of  fees under
the  Equal  Access  to  Justice Act, 5 U.S.C. § 504, must not  be
determined on the basis of  aggregating  the  company's net worth
with that of its parent corporation).

     [20]  For similar reasons, I find several  cases  cited  by
the  majority  irrelevant  to  this  proceeding.   NLRB  v. Deena
Artware,  for  example,  involved  a  corporate  actor  guilty of
"evading  . . .  back  pay obligation[s]."  361 U.S. at 401  (see
slip  op. at 28).  Similarly,  the  corporate  actor  in  Package
Service  Co.  v.  NLRB  was  guilty  of  buying  another company,
Allegheny Graphics, Inc., with the intent of "making  Graphics  a
non-union employer."  113 F.3d at 848.  The court also noted that
"key  executives  of  PSC  personally  implemented that strategy,
committing in the process the unfair labor practices" at issue in
the case.  Id. (see slip op. at 30-31).

     [21]   For  the  reasons  stated in my  dissent  in  Cyprus
Cumberland Resources Corp., 21 FMSHRC  722, 737-38 (July 1999), I
find  my  colleagues'  reliance  on  Chevron   inappropriate  and
misplaced.

     [22]  The majority also acknowledges that "[t]he Commission
has  long  recognized  that  `the  Mine Act is not an  employment
statute.  The Act's concerns are the health and the safety of the
nation's miners.'"  Slip op. at 33 n.33  (quoting  UMWA on behalf
of Rowe v. Peabody Coal Co., 7 FMSHRC at 1364).

     [23]  The Chairman and Commissioner Beatty see  Kyber/Jesse
Branch  as  a  unitary  operator,  while Commissioner Marks  sees
Berwind/Kentucky  Berwind/Kyber/Jesse   Branch   as   a   unitary
operator.   Ultimately,  a  majority  finds Kyber/Jesse Branch  a
"unitary operator" in part because "the control exercised by [the
two companies] over health and safety at  the Elmo No. 5 Mine was
centralized."   Slip op. at 38.  Yet none of  the  evidence  they
cite in support of  this statement has anything to do with health
and safety, but rather all relates to the direction and nature of
mining, preparation of  mine maps, and surveying.  Id.  Moreover,
none  of  these  activities  were  "centralized  within  the  two
companies."  Id.   As  the  majority acknowledges, Kyber made all
decisions with respect to the  direction  and  nature  of  mining
(id.), while Jesse Branch performed all engineering services (id.
at  17, 38).  Indeed, Kyber paid Jesse Branch for these services.
Id. at 15.
     For the foregoing reasons, I would thus reverse the judge's
finding that Kyber is an operator, and affirm in result his
rejection of the Secretary's unitary operator theory.


                              Theodore F. Verheggen, Commissioner


Distribution

Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Robert I. Cusick, Esq.
Marco M. Rajkovich, Jr., Esq.
Wyatt, Tarrant & Combs
1700 Lexington Financial Center
Lexington, KY 40507

Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell & Moring LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C.  20004

Judith Rivlin, Esq.
United Mine Workers of America
900 Fifteenth St., N.W.
Washington, D.C.  20005

Harry Tuggle, Esq.
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15222

James A. Lastowka, Esq.
McDermott, Will & Emery
600 Thirteenth St., N.W.
Washington, D.C.  20005

Michael F. Duffy, Esq.
National Mining Association
1130 17th St., N.W.
Washington, D.C.  20036

Charles J. Baird, Esq.
(Coal Operators and Associates)
Baird, Baird, Baird & Jones, PSC
P.O. Box 351
415 Second Street
Pikeville, KY 41502

Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041