United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2009 Decided July 21, 2009 

No. 08-1312 

SECRETARY OF LABOR, MINE SAFETY AND HEALTH 

ADMINISTRATION, 

PETITIONER

v. 

NATIONAL CEMENT COMPANY OF CALIFORNIA, INC., ET AL., 

RESPONDENTS

On Petition for Review of a Decision 

of the Federal Mine Safety and Health Review Commission 

Robin A. Rosenbluth, Attorney, Mine Safety & Health 

Administration, argued the cause for petitioner. With her on 

the briefs were Carol A. De Deo, Deputy Solicitor, and W. 

Christian Schumann, Counsel. 

Margaret Lopez argued the cause for respondent National 

Cement Company of California, Inc. With her on the brief 

was Michael T. Heenan. 

Daniel W. Wolff argued the cause for respondent Tejon 

Ranchcorp. With him on the brief was Thomas C. Means. 

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges. 
2 

 Opinion for the Court filed by Circuit Judge GRIFFITH. 

GRIFFITH, Circuit Judge: The Secretary of Labor, acting 

through the Mine Safety and Health Administration, cited the 

National Cement Company of California for its failure to 

install guardrails along a private road leading to its cement 

plant. The question before us is whether MSHA has 

jurisdiction over the road. The answer depends on whether the 

road falls within the definition of “mine” in the Federal Mine 

Safety and Health Act of 1977 (Mine Act), Pub. L. No. 95-

164, § 102(b)(3), 91 Stat. 1290, 1290 (codified at 30 U.S.C. 

§ 802(h)(1)). We hold that the Secretary’s view that it does is 

a reasonable interpretation of the statute and remand this 

matter for proceedings on the merits of the citation. 

I.

A. 

The Mine Act requires the Secretary of Labor to develop 

and promulgate mandatory safety and health standards for the 

nation’s mines. See 30 U.S.C. § 811 (2006). MSHA, acting on 

behalf of the Secretary, ensures compliance with these 

standards by, among other things, conducting regular mine 

inspections and issuing citations to noncompliant mine 

operators. See id. §§ 813(a), 814(a). A mine “operator” is 

“any owner, lessee, or other person who operates, controls, or 

supervises a . . . mine.”1

 Id. § 802(d). A “mine” is defined as 

(A) an area of land from which minerals are extracted 

. . . , (B) private ways and roads appurtenant to such 

 

1

 The Mine Act defines “person” broadly, as “any individual, 

partnership, association, corporation, firm, subsidiary of a 

corporation, or other organization.” Id. § 802(f). 
3 

area, and (C) lands, excavations, underground 

passageways, shafts, slopes, tunnels and workings, 

structures, facilities, equipment, machines, tools, or 

other property . . . used in . . . the work of extracting 

such minerals . . . , or used in . . . the milling of such 

minerals . . . . 

Id. § 802(h)(1). 

The Federal Mine Safety and Health Review Commission 

is an independent adjudicatory body that resolves disputes 

arising under the Mine Act. See id. §§ 815, 823. Mine 

operators may contest MSHA citations before a Commissionappointed administrative law judge, id. § 823(d)(1), and any 

person aggrieved by an ALJ’s decision is entitled to request 

Commission review, id. § 823(d)(2)(A). Persons aggrieved by 

an order of the Commission may obtain judicial review in an 

appropriate court of appeals. See id. § 816(a)–(b). 

B. 

The National Cement Company of California owns and 

operates a cement processing plant located on the southern 

portion of a 270,000-acre ranch owned by Tejon Ranchcorp.2

National Cement occupies the land pursuant to a lease 

agreement that includes an easement to use an access road 

that runs 4.3 miles north from State Route 138 to the cement 

plant. The access road is the only paved road that runs from 

the state highway to the plant. Under the terms of the 

easement, only National Cement, Tejon, and persons 

 

2

 The facts of this case are largely undisputed and have been set 

forth in our prior decision regarding this matter. See Sec’y of Labor 

v. Nat’l Cement Co. of Cal., 494 F.3d 1066, 1068–73 (D.C. Cir. 

2007). We describe them here only to the extent necessary to 

provide context for our decision. 
4 

authorized by the State of California may use the access road. 

Signs posted at the entrance from the highway and along the 

initial segment of the road provide notice of this restriction. 

National Cement has built a guardhouse and gate where the 

road ends at its facility. 

Most of the traffic along this access road is related to the 

cement plant. National Cement’s customers, contractors, 

vendors, and employees use the road to travel to and from the 

plant, which operates continuously, and heavy trucks drive on 

the road day and night for more than 45,000 round trips a 

year. But as one of the few paved roads on the ranch, the 

access road is also used on occasion by Tejon and its 

associates for purposes unrelated to mining. The Federal 

Aviation Administration uses the road to reach a 

communications tower, and the California Department of 

Water Resources uses the road to maintain an aqueduct and 

bridge. 

The lease agreement grants National Cement the right to 

alter, maintain, and repair the access road, and National 

Cement has generally kept the road in useable condition 

without seeking Tejon’s permission. Past maintenance 

includes resurfacing, resealing, and repaving the road, as well 

as installing speed bumps and speed limit signs. National 

Cement has not, however, installed protective barriers on 

sections of the road by drop-offs—an omission that led 

MSHA to cite the company for violating 30 C.F.R. 

§ 56.9300(a), which states: “Berms or guardrails shall be 

provided and maintained on the banks of roadways where a 

drop-off exists of sufficient grade or depth to cause a vehicle 

to overturn or endanger persons in equipment.”3

 

 

3

 MSHA first cited National Cement for its failure to install berms 

or guardrails in March 1992. A month later, MSHA vacated the 
5 

 National Cement challenged the citation, and Tejon 

intervened in support. The ALJ granted the Secretary’s 

motion for summary judgment that MSHA has jurisdiction 

over the road, ruling that the road is a mine under subsection 

(B) of the Mine Act’s definition of that term because it is a 

private road appurtenant to an extraction area. See Nat’l 

Cement Co. of Cal. v. Sec’y of Labor, 27 F.M.S.H.R.C. 84, 99 

(2005). The Commission ordered interlocutory review and 

vacated the ALJ’s decision, concluding that the Secretary’s 

interpretation of subsection (B) would lead to results that are 

absurd or inconsistent with the purpose of the Mine Act. See

Sec’y of Labor v. Nat’l Cement Co. of Cal., 27 F.M.S.H.R.C. 

721, 728, 735 (2005). The Commission determined that only 

those sections of the access road over which National Cement 

and its customers have exclusive use can be considered 

“appurtenant” to an extraction area and remanded the matter 

for the ALJ to determine whether any such section exists. Id.

at 735. 

The Secretary responded by filing the first of two 

petitions for review in this court, arguing that subsection (B) 

unambiguously includes the access road. We disagreed, 

concluding that the statute is not clear on the issue. See Sec’y 

of Labor v. Nat’l Cement Co. of Cal., 494 F.3d 1066, 1074 

(D.C. Cir. 2007). We noted that under subsection (B), a road 

 

citation on the erroneous belief that the access road was a public 

highway and National Cement had no control over personnel using 

the roadway until they arrived at the mine site. On February 13, 

2003, a MSHA inspector issued another citation to National 

Cement for its failure to install berms or guardrails. In late 2003, 

MSHA made clear it had authority to regulate the road but vacated 

the citation because National Cement had inadequate notice that the 

road was subject to its jurisdiction. On February 9, 2004, MSHA 

issued the citation that is the subject of this action. 
6 

is a mine if it meets two criteria: it must be (1) “private” and 

(2) “appurtenant to” an extraction area. Id. We also pointed 

out that each of these terms is capable of a broad reading and 

a narrow reading. “Private” means “intended for or restricted 

to the use of a particular person or group or class of persons 

. . . .” See id. (quoting WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY 1804–05 (1993)). This could be 

read broadly to mean use restricted to “a particular . . . group 

or class of persons,” or it could be read narrowly to mean use 

restricted to “a particular person.” Id. “Appurtenant” means 

“a: annexed or belonging legally to some more important 

thing (a right-of-way—to land or buildings); b: incident to 

and passing in possession with real estate—used of certain 

profits or easements.” See id. (quoting WEBSTER’S THIRD at

107). This definition, we stated, could be read broadly to 

encompass easements benefiting some “more important 

thing” or more narrowly to include only easements dedicated 

exclusively to use by some more important thing. See id. We 

determined that although the broad readings of “private” and 

“appurtenant” would cover the access road, the narrow 

readings would not. Id.

Because the Secretary failed to recognize this ambiguity 

in subsection (B) and erroneously thought its meaning was 

plain, we could not defer to her interpretation. Id. at 1075 

(“[D]eference is reserved for those instances when an agency 

recognizes that the Congress’s intent is not plain from the 

statute’s face.” (quoting Peter Pan Bus Lines, Inc. v. Fed. 

Motor Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 

2006))). We vacated the Commission’s decision and 

remanded the matter “for [the Commission] to obtain from the 

Secretary a Chevron step 2 interpretation” made in light of the 

statute’s possible meanings. Id. at 1077. We also observed 

that the Secretary’s broad interpretation of subsection (B) 

raised three concerns about how the exercise of MSHA’s 
7 

jurisdiction over the access road might relate to the Mine 

Act’s overall enforcement scheme. First, does National 

Cement, which does not own the road, have authority to alter 

the road as MSHA might require? Second, would National 

Cement be responsible for all road users, not just those it 

controlled? Third, would MSHA jurisdiction extend to those 

with no connection to the cement plant but who exert some 

control over the access road? See id. at 1075–76. We 

instructed the Secretary to address these questions on remand 

and explain how her interpretation of subsection (B) could be 

harmonized with the Act’s enforcement provisions.4

 

 On remand, the Secretary took the view that “private” 

roads are those restricted to a particular group or class of 

persons (not to a particular person) and that “appurtenant to” 

requires only that the road belong and provide a right of way 

to some more important thing (not dedicated exclusively to 

use by some more important thing). See Sec’y of Labor v. 

Nat’l Cement Co. of Cal., 30 F.M.S.H.R.C. 668, 672 (2008); 

see also Br. of Sec’y at 23–26. Under those broad readings, 

the Secretary concluded once again that the access road is a 

mine because its use is limited to a particular group of 

persons, making it “private,” and it is subject to a transferable 

easement benefitting National Cement’s plant, making it 

“appurtenant to” an extraction area. The Secretary tried to 

address our concerns by explaining that she would apply 

 

4

 Judge Rogers dissented, finding the text of subsection (B) 

unambiguous and suggesting that the court “improperly relie[d] 

upon policy considerations to find ambiguity where there is none.” 

Id. at 1077 (Rogers, J., dissenting). The cement plant is an 

extraction area and, according to Judge Rogers, the access road is 

both “private” and “appurtenant to” the cement plant. Id. at 1077–

78. Judge Rogers also found it consistent with the history and 

purpose of the Act to interpret “mine” to include the access road. 

Id. at 1078–80. 
8 

subsection (B) to the road itself and subsection (C), which 

covers equipment used in mining, to those vehicles that use 

the road to support mining activity. See Nat’l Cement, 30 

F.M.S.H.R.C. at 672, 675–78. Under this interpretation, the 

Secretary would hold National Cement responsible only for 

the conditions of the road itself and for vehicles on the road 

that are under its control and covered by subsection (C) as 

mining equipment. 

 The Commission again found the Secretary’s 

interpretation unreasonable and vacated the citation. It 

considered the Secretary’s use of subsection (C) a 

contravention of the Act because it seemed to limit the reach 

of subsection (B) to only certain kinds of road uses. See id. at 

676–77. According to the Commission, subsection (C) is 

“clear” and “has been interpreted to plainly mean that Mine 

Act jurisdiction extends beyond subsections (A) and (B) . . . .” 

See id. at 675. The Commission also determined that the 

Secretary’s view did “not do nearly enough to prevent MSHA 

jurisdiction from potentially attaching to the possible nonmine uses of the Access Road should the road be subject to 

MSHA regulation as a mine.” Id. at 678. Thus the 

Commission concluded that the Secretary’s interpretation not 

only misconstrued the statute but failed to address our 

concerns. 

The Secretary has again petitioned for review, arguing 

that her interpretation of subsection (B) is reasonable. We 

have jurisdiction to consider her petition under 30 U.S.C. 

§ 816(b). 

II.

As noted, previously we held that it is not clear 

subsection (B) covers the access road. See Nat’l Cement, 494 
9 

F.3d at 1077. Accordingly, we proceed to Chevron step two 

and determine whether the Secretary’s interpretation of that 

provision, advanced in this litigation, is reasonable. See

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 843 (1984); see also Sec’y of Labor v. Excel 

Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (“‘[T]he 

Secretary’s litigating position before [the Commission] is . . . 

an exercise of [her] delegated lawmaking powers’ . . . and is 

therefore deserving of deference.” (quoting RAG Cumberland 

Res. LP v. FMSHRC, 272 F.3d 590, 596 n.9 (D.C. Cir. 2001)) 

(second alteration in original)). 

 Tejon asserts that Chevron does not apply because the 

Secretary failed to “follow[] this Court’s remand mandate.” 

Br. of Tejon at 12. Rather than harmonizing her interpretation 

of subsection (B) with the overall enforcement scheme of the 

Mine Act, so the argument goes, the Secretary “engage[d] in 

interpretative alchemy” and created “an entirely new 

rationalization for her actions.” Id. at 12–13. As Tejon sees it, 

her “ever-shifting” reasoning “is nothing more than a post-hoc 

rationalization.” Id. at 13–16. 

Distilled from its rhetoric, Tejon is making two separate 

but related points: that the Secretary impermissibly changed 

both the rationale for the citation and her interpretation of 

subsection (B). But the Secretary’s rationale on remand used 

the same reasoning for citing National Cement as the first 

instance. The access road fell within the definition of a mine 

under her broad reading of subsection (B). Tejon is correct 

that the Secretary read subsection (B) differently in response 

to our concern that her broad interpretation might extend 

MSHA jurisdiction in problematic ways. She had originally 

interpreted subsection (B) to cover private roads appurtenant 

to extraction areas and everything on those roads. See Nat’l 

Cement, 494 F.3d at 1075–76; see also Reply Br. of Sec’y at 
10 

8. This interpretation tracked her longstanding view that 

subsection (A) covers extraction areas and everything within 

their boundaries. See Br. of Sec’y at 28. But now the 

Secretary interprets subsection (B) to cover the access road 

but not the vehicles on it. A change in interpretation, 

however, is no reason to withhold Chevron deference 

provided the agency explained the basis for its reconsidered 

view. See Nat’l Cable & Telecomms. Ass’n v. Brand X 

Internet Servs., 545 U.S. 967, 981–82 (2005). The reason for 

the Secretary’s change is obvious. Following our directions, 

she tried to read subsection (B) in a way that addressed our 

concerns and still made sense within the overall enforcement 

scheme of the Mine Act. See Nat’l Cement, 30 F.M.S.H.R.C. 

at 672; cf. FCC v. Fox Television Stations, Inc., No. 07-582, 

slip op. at 10–11 (U.S. 2009) (stating that an agency changing 

course must ordinarily “display awareness that it is changing 

position” but “need not demonstrate to a court’s satisfaction 

that the reasons for the new policy are better than the reasons 

for the old one”).

 Tejon also argues that Chevron does not apply because 

the Secretary’s interpretation of subsection (B) does not 

reflect a “policy choice.” Br. of Tejon at 48–52. Assuming for 

the sake of argument that such a rule exists, the Secretary’s 

decision to adopt the broad interpretation of subsection (B) 

clearly involves a policy choice at the core of her regulatory 

mission under the Mine Act. Congress directed the Secretary 

to protect the safety and health of the nation’s miners. See 30 

U.S.C. § 801. The Secretary’s interpretation of subsection (B) 

to encompass roads, like the access road, that have a 

significant connection to mining implements this policy. Cf.

Otis Elevator Co. v. Sec’y of Labor, 921 F.2d 1285, 1291 

(D.C. Cir. 1990) (calling the decision to subject non-mine 

personnel who are servicing mine elevators to MSHA 
11 

jurisdiction “the kind of expert policy judgment” courts are 

“ill-equipped to make”). 

Accordingly, the Secretary’s interpretation of subsection 

(B) is entitled to Chevron deference. 

III.

 Applying the standard of review called for by Chevron

step two, we ask in Part A whether the Secretary has 

advanced a reasonable interpretation of subsection (B). In Part 

B, we consider whether the Secretary adequately addressed 

the concerns we raised when this matter was last before us. 

A.

 Subsection (B) provides that “private ways and roads 

appurtenant to [extraction areas]” are “mines.” 30 U.S.C. 

§ 802(h)(1)(B). On remand the Secretary adopted the broad 

reading of this provision to bring the access road within 

MSHA’s jurisdiction. We held before that such a reading was 

not inconsistent with the language of subsection (B) and we 

will not revisit that decision. See PNC Fin. Servs. Group, Inc. 

v. Comm’r, 503 F.3d 119, 126 (D.C. Cir. 2007) (“[W]hen a 

court decides upon a rule of law, that decision should 

continue to govern the same issues in subsequent stages in the 

same case.” (quoting Arizona v. California, 460 U.S. 605, 618 

(1983))). 

But there is more to the matter. We also expressed 

concern whether a broad reading of “private” and 

“appurtenant,” although consistent with the wording of 

subsection (B), could be harmonized with the Mine Act’s 

overall enforcement scheme. For example, we wondered if 

operators of roads used for both mining and non-mining 
12 

purposes would be responsible for all road users. See Nat’l 

Cement, 494 F.3d at 1075–76. The Secretary tried to address 

this concern by reinterpreting subsection (B) to cover roads 

but not the vehicles on them. National Cement and Tejon 

assert that the Secretary cannot limit subsection (B) in this 

way. This is an odd argument coming from these parties, 

whose effort throughout this litigation has been to oppose the 

extension of MSHA’s jurisdiction to the access road. Yet now 

they argue that subsection (B) compels a more expansive 

interpretation of MSHA’s jurisdiction than that advanced by 

the Secretary on remand. Of course, their intent is to show 

there is no reasonable interpretation of subsection (B) that 

covers the access road. In their view, subsection (B) 

necessarily includes vehicles, such that the Secretary’s broad 

reading cannot avoid the problem we raised. Operators of 

roads not used exclusively for mining purposes will be 

responsible for non-mining vehicles outside of their control. 

This, they claim, is unreasonable, as our previous opinion 

suggested, leaving the Secretary no choice but to adopt the 

narrow reading of subsection (B) in which only private roads 

used exclusively by mining vehicles fall within the 

jurisdiction of MSHA. 

We must thus consider whether the Secretary acted 

reasonably in reinterpreting subsection (B) to cover the road 

but not vehicles. The parties’ arguments highlight three 

distinct questions for us to consider. Is the Secretary’s 

decision to exempt vehicles consistent with the language of 

subsection (B)? Is it reasonable for the Secretary to interpret 

subsection (B) differently than (A)? And is the Secretary’s 

reliance on subsection (C) to cover mining-related vehicles on 

the road a permissible construction of the statute? We take 

each question in turn. 
13 

First, the Secretary argues that we must defer to her 

interpretation that subsection (B) does not cover vehicles on 

the access road because the statute is not clear on that point. 

We agree. National Cement and Tejon argue that the phrase 

“ways and roads,” like the term “area” in subsection (A), is 

geographically “all-encompassing” and covers everything on 

the road. See, e.g., Br. of Nat’l Cement at 29–31. Perhaps. But 

the Secretary’s view is also reasonable and has the added 

virtue of being more consistent with the common meaning of 

“road,” which is not normally used to refer to both the road 

itself and the vehicles traveling on it, see WEBSTER’S THIRD at 

1963 (defining “road” as “an open way . . . for vehicles [and] 

persons”). 

Second, we also find reasonable the Secretary’s decision 

to interpret subsection (B) to cover roads but not vehicles 

even though she interprets subsection (A) to cover extraction 

areas and everything within their boundaries. In subsection 

(A), Congress provided that a “mine” is an “area of land from 

which minerals are extracted.” 30 U.S.C. § 802(h)(1)(A). The 

Secretary interprets the word “area” in this provision as allencompassing because “virtually everything in an extraction 

area . . . is necessarily related to [mining] activity,” Br. of 

Sec’y at 30–31. The same is not true, however, for private 

roads appurtenant to extraction areas. As demonstrated by the 

facts of this case, vehicles on such roads may have no 

connection to mining, making it sensible to exclude them 

from MSHA’s jurisdiction under subsection (B). Subsection 

(A) concerns an area of land in which almost everything is 

dedicated to mining. Subsection (B) does not. It was 

reasonable for the Secretary to adopt different interpretations 

for different things. Cf. Atl. Cleaners & Dyers, Inc. v. United 

States, 286 U.S. 427, 433 (1932) (stating that the same words 

in a statute may be interpreted differently “[w]here the subject 

matter to which the words refer is not the same”). 
14 

And third, we conclude that the Secretary’s view that 

subsection (C) covers mining-related vehicles traveling on 

mining roads is also reasonable. Subsections (B) and (C) can 

be read to work in tandem. Because subsection (C), which 

covers mining-related equipment, clearly encompasses mining 

vehicles, it is reasonable to read (B) in a way that does not. 

See Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995) 

(“An endlessly reiterated principle of statutory construction is 

that all words in a statute are to be assigned meaning, and that 

nothing therein is to be construed as surplusage.”). National 

Cement and Tejon argue that subsection (C) is intended to 

continue the expansion of MSHA jurisdiction beyond the 

geographic bounds of (A) and (B), and the Secretary cannot 

use subsection (C) to limit the reach of (B). But their 

argument rests on a mistaken premise. Under the Secretary’s 

interpretation, subsection (C) actually works to expand 

MSHA jurisdiction. Subsection (A) confers jurisdiction over 

extraction areas and all activities within their boundaries. 

Subsection (B) extends jurisdiction to private roads 

appurtenant to extraction areas, and subsection (C) reaches 

vehicles used in mining but not located within an extraction 

area. The Secretary’s construction of subsections (B) and (C) 

is entirely consistent with a broad statutory definition of 

“mine,” which extends the protections of the Mine Act 

beyond the actual site where mining takes place. 

Accordingly, we hold that the Secretary has provided a 

reasonable interpretation of subsection (B) that is entitled to 

Chevron deference. 

B.

 We now ask whether the Secretary has adequately 

explained how her broad interpretation of subsection (B) can 
15 

be harmonized with the Mine Act’s enforcement scheme. In 

our prior opinion, our first concern was that National Cement 

would lack authority to alter the road as the Secretary might 

direct. See Nat’l Cement, 494 F.3d at 1075. The Secretary 

notes, however, that liability under the Mine Act is dependent 

upon a finding of control: only mine “operators” can be cited 

and held liable for violations. See 18 U.S.C. §§ 802(d), 

814(a); Sec’y of Labor v. Berwind Natural Res. Corp., 21 

F.M.S.H.R.C. 1284, 1293 (1999) (stating that to be an 

“operator,” an entity must have “substantial involvement” in 

the operation of the mine). In other words, an entity cannot be 

held liable unless it “operates, controls, or supervises” the 

mine. 18 U.S.C. § 802(d). For example, “if National Cement 

does not have the requisite control over the road to install 

berms or guardrails, it is not an ‘operator’ and cannot be cited 

for a violation of the berm or guardrail requirement.” Br. of 

Sec’y at 38. Tejon argues that the Secretary’s response 

ignores the longstanding rule that mine operators are subject 

to strict liability for violations of MSHA standards. See Br. of 

Tejon at 18 (citing Sec’y of Labor v. Twentymile Coal Co., 

456 F.3d 151 (D.C. Cir. 2006)). But strict liability means 

liability without fault. W. PAGE KEETON, PROSSER & KEETON 

ON THE LAW OF TORTS 534 (5th ed. 1984). It does not mean 

liability for things that occur outside one’s control or 

supervision. The Secretary’s response alleviates our first 

concern. 

 Our second concern was that the Secretary may hold 

National Cement responsible for all users of the road, 

including those over whom it has no authority or control. See

Nat’l Cement, 494 F.3d at 1075–76. Under the Mine Act, a 

determination that a property is a mine entails significant 

consequences for mine operators. For example, mine 

operators must comply with withdrawal orders and remove 

“all persons” from specified areas upon MSHA’s request, see, 
16 

e.g., 30 U.S.C. § 814(b), (d), (e); they must provide sitespecific hazard awareness training to any person present at a 

“mine site,” 30 C.F.R. § 46.11(b); and, in the event of an 

accident, they must notify the Secretary and take appropriate 

measures to prevent the destruction of relevant evidence, see

30 U.S.C. § 813(j). See also Nat’l Cement, 494 F.3d at 1075–

76 (explaining enforcement scheme). The Secretary assures us 

she will not interpret these provisions in a way that requires 

National Cement to take unreasonable measures or act beyond 

its authority. See Br. of Sec’y at 40–47. For example, in the 

event of a withdrawal order the Secretary states she will only 

require National Cement to withdraw those persons over 

whom it has control. She argues that the statutory requirement 

to withdraw “all persons” can be met by ordering Tejon to 

withdraw anyone else on the road solely within its control. 

Likewise, the Secretary will not require National Cement to 

provide site-specific training to persons whose only contact 

with the mine is their use of the access road because she 

interprets the phrase “mine site” to refer only to extraction 

areas, not roads appurtenant to such areas. The Secretary will, 

however, require National Cement to take reasonable and 

necessary actions within its control, such as immediately 

reporting to MSHA road accidents involving death or the 

possibility of death. 

By explaining how her reading of subsection (B) makes 

sense within the enforcement provisions we identified, the 

Secretary has addressed our concern. We will not declare the 

Secretary’s interpretation of subsection (B) unreasonable 

simply because there is a remote chance it may lead to 

problematic results with regard to a small subset of the Mine 

Act’s enforcement provisions. Congress defined private roads 

appurtenant to extraction areas as mines. The question before 

us is whether the Secretary’s interpretation of this provision is 

reasonable. Not only is the Secretary’s interpretation 
17 

consistent with the statute’s language, it is perfectly aligned 

with a key objective of the Mine Act. The Secretary must act 

to ensure the “health and safety of [the mining industry’s] 

most precious resource—the miner.” 30 U.S.C. § 801(a). By 

extending MSHA jurisdiction to roads that, like the access 

road, are plainly related to mining activity and traveled 

extensively by mine personnel, she has done just that. “[T]he 

theoretical possibility that an agency might someday abuse its 

authority is of limited relevance in determining whether the 

agency’s interpretation of a congressional delegation is 

reasonable.” PDK Labs. Inc. v. U.S. Drug Enforcement 

Admin., 438 F.3d 1184, 1192 (D.C. Cir. 2006). Should MSHA 

use its jurisdiction over the access road to unduly burden 

National Cement or Tejon, “the courts remain open to 

consider a challenge to that action,” id. 

Our final concern was that Tejon and other right-of-way 

grantees who may operate, control, or supervise the road 

would be deemed mine “operators” even though they have no 

connection to mining. See Nat’l Cement, 494 F.3d at 1076. 

The Secretary responds that an entity like Tejon should be 

required to shoulder certain responsibilities to the extent it 

maintains enough control over a mining road to be a mine 

“operator.” It is reasonable, for example, that such an entity 

be required to perform necessary road maintenance and 

comply with withdrawal orders. See Br. of Sec’y at 47.5

 In the 

Secretary’s view, these are “modest burden[s] compared to 

the importance of the health and safety concerns involved,” 

Reply Br. of Sec’y at 28 (quoting D.H. Blattner & Sons v. 

Sec’y of Labor, 152 F.3d 1102, 1108 (9th Cir. 1998)). We 

 

5

 National Cement and Tejon argue that Tejon’s control and 

authority over the road are insufficient to make Tejon an operator 

because it has no connection to mining. We need not resolve this 

issue as the Secretary seeks only to hold National Cement 

responsible for the conditions of the access road. 
18 

agree. It is noteworthy that although Tejon is not a typical 

mine operator, it does have a significant connection to 

mining. After all, Tejon directly benefits from National 

Cement’s use of the road. In exchange for the easement that 

permits National Cement to haul cement and equipment over 

its land, Tejon receives payments from National Cement 

based on cement sales. Granting National Cement an 

easement was a business decision in which Tejon determined 

that the costs associated with the cement company’s use of its 

land were outweighed by the expected benefits of the 

transaction. It cannot argue in good faith that it lacks any 

relation to National Cement’s mining operations. 

Accordingly, we hold that the Secretary has adequately 

addressed our concerns. Her interpretation is reasonable in 

light of the overall enforcement scheme of the Mine Act. 

IV.

 For the foregoing reasons, we grant the petition for 

review, vacate the decision of the Commission, and remand 

for proceedings on the merits of the citation. 

So ordered.