1 NIS employs a total of forty-one people.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-1752

NORTHERN ILLINOIS STEEL SUPPLY COMPANY,

Petitioner,

v.

SECRETARY OF LABOR, FEDERAL MINE SAFETY AND

HEALTH ADMINISTRATION, AND FEDERAL MINE SAFETY

AND HEALTH REVIEW COMMISSION,

Respondents.

____________

On Petition for Review of a Decision of the

Federal Mine Safety and Health Review Commission.

Nos. 99-RM-78 & 99-M-120.

____________

ARGUED OCTOBER 23, 2001—DECIDED JUNE 20, 2002

____________

Before HARLINGTON WOOD, JR., CUDAHY, and KANNE,

Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. Northern Illinois Steel Supply Company (“NIS”) is a small,1

 familyowned business that sells prime domestic steel products,

including pipes, tubing, bars, plates, and beams, to businesses and individuals in Northern Illinois and Indiana.

One of NIS’s customers is Vulcan Material Company (“Vul-
2 No. 01-1752

can”). Vulcan operates a limestone extraction and crushing

operation (“the Quarry”) in Romeoville, Illinois. The Quarry is a mine subject to the jurisdiction of the Mine Safety and Health Administration (“MSHA”). In the present

action, NIS is contesting a citation for a violation of the

Federal Mine Safety and Health Act of 1977 (“the Mine

Act”), 30 U.S.C. § 801 et seq., that was issued by MSHA to

an NIS driver during a delivery of steel to Vulcan. Both an

Administrative Law Judge (“ALJ”) and the Federal Mine

Safety and Health Review Commission (“the Commission”)

held that the citation should be enforced. NIS then filed

a timely Petition for Review of the Commission’s order in

this court.

I. BACKGROUND

When Vulcan wants to purchase steel, it contacts NIS and

places an order. NIS then delivers the steel to the Quarry

on flatbed trucks driven by NIS employees. NIS does not

charge Vulcan for delivery of the steel. When steel is loaded

onto a flatbed at the NIS plant, it is secured to the truck

by wire ropes or metal chains which are tightened with a

winch-like device. The load is also surrounded by a metal

sling or lifting chain, which allows the steel to be lifted onto

and off of the flatbed.

When the NIS drivers reach the Quarry with a delivery

for Vulcan, they drive their trucks down an access road

to the delivery point. The delivery point varies and is usually near the project where the steel is going to be used. Once

a truck reaches its delivery point, the steel is unloaded

using Vulcan owned and operated equipment, including

cranes with hoists, forklifts, and loaders. At the time the

citation in question was issued, NIS and Vulcan had been

involved in a business relationship for approximately two

years. Prior to the issuance of the citation, the NIS drivers

usually facilitated the unloading of the steel by loosening

the wire ropes or metal chains securing the load to the
No. 01-1752 3

truck. On “rare occasions,” estimated to be ten to fifteen

percent of the time, the NIS driver would also guide the

hook of a crane hoist into the lifting chain, an action known

as “rigging” the load. It was estimated that NIS made deliveries to the Quarry once or twice a week, and the parties

stipulated that the drivers spent approximately twenty to

thirty minutes at the Quarry in connection with each delivery.

On January 28, 1999, an NIS driver made a delivery of

steel to the Quarry. An inspector from MSHA was present

at the Quarry on that date. The mine inspector testified

that he was walking in front of the Quarry’s maintenance

shop when he saw the NIS flatbed truck. The truck was

parked, and the inspector saw a man on top of the steel on

the flatbed. The man was guiding a hook from a crane into the lifting chain so that the steel could be removed

from the truck. The man was standing approximately fiveand-a-half to six feet above the ground, and, while he was

wearing a hard hat, he was not “tied off” with a safety belt

and line to prevent him from falling. A Vulcan employee

was running the equipment used to unload the steel, and

there were two other miners in the area, but no Vulcan supervisor was present. The mine inspector walked to the

truck, and while the inspector was approaching the truck,

a Vulcan management official arrived on the scene.

The mine inspector believed the man on the truck was

in danger. Originally, the inspector thought the man was a

Vulcan miner, but when he spoke to the man, the man identified himself as the NIS truck driver. The inspector made

the driver climb down off of the truck and explained the

dangers of working at such a height without a safety belt

and line. The driver agreed that his actions were dangerous

and assured the inspector that he would not do it again.

The inspector then cited NIS under 30 U.S.C. § 814(a) for a

violation of 30 C.F.R. § 56.15005, which provides: “Safety

belts and lines shall be worn when persons work where
4 No. 01-1752

there is a danger of falling . . . .” The mine inspector testified that, in issuing the citation, he believed NIS was

an independent contractor performing a service, the delivery and rigging of steel, at the mine and that it, therefore, fell under the Mine Act’s jurisdiction. NIS contested

the citation, arguing that it was not subject to the jurisdiction of the Mine Act. When a party contests a citation

issued under the Mine Act, the proceeding is adjudicated

before an ALJ. The ALJ’s decision is subject to discretionary

review before the Commission. In the present case, both the

ALJ and the Commission rejected NIS’s challenge to the

citation. NIS then filed a timely Petition for Review in this

court.

II. ANALYSIS

The Mine Act, which is enforced by MHSA, regulates coal

and other mines affecting commerce and “each operator” of

a covered mine. 30 U.S.C. § 803. Under 30 U.S.C. § 802(d),

an “operator” for purposes of the Mine Act is defined as

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

or supervises a . . . mine or any independent contractor performing services or construction at such mine.” NIS argues

that the citation should not be enforced because MHSA

erroneously concluded that NIS was an operator as defined

in the Mine Act. NIS asserts it is not an operator for purposes of the Mine Act but rather a vendor completing a sale

and, therefore, not subject to the jurisdiction of MHSA. The

ALJ found that NIS qualified as an operator under the

Mine Act because it was an independent contractor performing services at a mine and because NIS’s work was

closely related to the mining process and NIS had “a significant presence at the quarry.” The Commission affirmed,

holding that the ALJ’s determination was supported by

substantial evidence.

The parties disagree as to the correct standard for our

review. NIS asserts that we should review de novo because
No. 01-1752 5

this appeal involves an agency’s determination of its own

jurisdiction, citing United Transportation Union-Illinois

Legislative Board v. Surface Transportation Board, 183

F.3d 606, 612 (7th Cir. 1999), and United Transportation

Union-Illinois Legislative Board v. Surface Transportation

Board, 169 F.3d 474, 477 (7th Cir. 1999). Appellee the Secretary of Labor (“the Secretary”) urges us to reject the cases

cited by appellant and “instead adopt the principle that ‘the

rule of deference applies even to an agency’s interpretation of its own statutory authority or jurisdiction,’ ” quoting

Mississippi Power & Light Co. v. Moore, 487 U.S. 354, 381

(1988) (Scalia, J., concurring). While the Secretary correctly

points out that several other circuits have granted deference to an agency’s determination of its own jurisdiction,

the Supreme Court has not definitively ruled on the issue.

We believe that de novo review is appropriate and, therefore, follow the established law of this circuit as set out in

the United Transportation Union cases, 183 F.3d at 612 and

169 F.3d at 477. See also Bolton v. Merit Sys. Protection Bd.,

154 F.3d 1313, 1316 (Fed. Cir. 1998).

The Federal Coal Mine Health and Safety Act of 1969

(“the Coal Mine Act”), Pub. L. No. 91-173, § 3(d), 83 Stat.

742, 743, the predecessor to the present Mine Act, defined

operator as “any owner, lessee, or other person who operates, controls or supervises a coal mine.” While this statutory language did not expressly include independent contractors, “courts interpreted this provision to include independent contractors whenever the contractors, in performing services at a coal mine, controlled or supervised all or

part of the mine.” Joy Technologies, Inc. v. Sec’y of Labor,

99 F.3d 991, 993-94 (10th Cir. 1996) (collecting cases). In

1977, Congress amended the Coal Mine Act and renamed

it the Federal Mine Safety and Health Act. As a part of

the 1977 amendments, Congress broadened the definition

of operator under 30 U.S.C. § 802(d) to include “any owner,

lessee or other person who operates, controls, or supervises
6 No. 01-1752

a . . . mine or any independent contractor performing services or construction at such mine.” The legislative history

accompanying these amendments states:

the definition of mine “operator” is expanded to include

“any independent contractor performing services or construction at such mine.” It is the Committee’s intent to

thereby include individuals or firms who are engaged in

construction at such mine, or who may be, under contract or otherwise, engaged in the extraction process for

the benefit of the owner or lessee of the property and

to make clear that the employees of such individuals

or firms are miners within the definition of the Federal Mine Safety and Health Act of 1977. In enforcing

this Act, the Secretary should be able to issue citations, notices, and orders, and the Commission should

be able to assess civil penalties against such independent contractors as well as against the owner, operator,

or lessee of the mine. The Committee notes that this

concept has been approved by the federal circuit court

in Bituminous Coal Operators’ Assn. v. Secretary of the

Interior, 547 F.2d 240 (C.A. 4 1977).

S. Rep. No. 95-181, 95th Cong., 1st Sess. 14, reprinted in

1977 U.S.C.C.A.N. 3401, 3414.

It is clear that NIS performed work, the delivery and occasional rigging of steel, at a mine and that, in doing

so, NIS was not acting under the direction of Vulcan. Nevertheless, NIS argues that not all independent contractors

performing activities at a mine are covered by the Mine

Act. NIS contends that it does not qualify as an operator

under the Mine Act because it performed only incidental

activities at a mine and the activities it performed were not

closely related to the mining process. While this circuit has

not previously considered this argument, three appellate

courts have. In Old Dominion Power Company v. Donovan,

772 F.2d 92, 96 (4th Cir. 1985), the Fourth Circuit, after
No. 01-1752 7

considering the legislative history set out above, concluded

that the Mine Act’s definition of operator includes only

those independent contractors who are involved in mine

construction or extraction and who have a “continuing presence” at a mine.

In Otis Elevator Company v. Secretary of Labor, 921 F.2d

1285 (D.C. Cir. 1990), the D.C. Circuit held “that the phrase

‘any independent contractor performing services . . . at [a]

mine’ means just that—any independent contractor performing services at a mine.” Id. at 1290 (emphasis in original). The Otis Elevator court rejected both the Old Dominion court’s reliance on and its reading of the legislative

history, holding that the legislative history’s special reference to independent contractors involved either in the

extraction process or in construction at a mine did nothing

to exclude other independent contractors from coverage.

The court noted, “Nothing in the legislative history expressly states an intent to cover only these independent

contractors . . . .” Id. The court concluded that, given the

absence of a clearly expressed legislative intent to the

contrary, there was nothing to expand the scope of its

judicial inquiry beyond the unambiguous statutory language. Id. at 1290-91 (citing cases). The Tenth Circuit, in

Joy Technologies, Inc., followed the D.C. Circuit’s Otis Elevator approach, holding

the definition of “operator” in section 3(d) of the Mine

Act is clear and means just what it says—an operator

includes “any independent contractor performing services . . . at [a] mine. Although Congress may have been

specially concerned with contractors who are engaged

in the extraction process and who have a continuing

presence at a mine, section 3(d) by its terms is not limited to these contractors.

Joy Technologies, Inc., 99 F.3d at 999 (citations omitted).

Despite its broad holding, the Otis Elevator court recognized that there may be a point at which an entity’s
8 No. 01-1752

contacts with a mine would be so attenuated as to remove

it from the jurisdiction of MHSA. The court expressly stated

in a footnote that, because Otis conceded that it was performing “limited but necessary services,” it did not need

to confront the issue of whether there is a point at which

an independent contractor’s contact with a mine is so infrequent or de minimis that it would be difficult to conclude

that services were being performed under the Mine Act.

Otis Elevator Co., 921 F.2d at 1290 n.3. Similarly, the Joy

Technologies court based its finding that Joy was an independent contractor on the fact that substantial evidence

supported the conclusion that Joy “performed significant

services” at a mine and, therefore, did not reach the de

minimis issue in its operator analysis. Joy Technologies,

Inc., 99 F.3d at 998-99. The Tenth Circuit declined to analyze Joy’s hypothetical that the broad definition of operator would “include mere vendors, such as the Xerox service

representative who comes onto mine property to repair a

copy machine,” stating that “[f]or present purposes, it is

enough to conclude that we are constrained by the plain

meaning of the words Congress chose.” Id. at 1000.

The Mine Act does not define “services . . . at [a] mine.” In

the present case, NIS’s contacts with the mine were clearly

less significant than those of the plaintiffs in Otis Elevator or Joy Technologies. Otis contracted to provide periodic

maintenance and repairs to underground elevators that

carried miners into mines. Otis Elevator Co., 921 F.2d at

1287. Joy, a company which manufactures and sells mining

equipment, sent a service representative onto mine property

to assure equipment was delivered in proper condition, to

advise and assist in repairs and procuring necessary replacement parts, and to “troubleshoot” problems with equipment both above and below ground. Joy Technologies, Inc.,

99 F.3d at 994. In contrast, NIS drivers drove truckloads

of steel to designated delivery points, loosened the restraints on the loads, and occasionally helped to rig the
No. 01-1752 9

load. While the steel itself was fashioned by Vulcan into

catwalks, handrails, and other structures that were vital to

the mining process, the work performed by the NIS drivers

at the mine can only be described as de minimis. In fact,

there is nothing to distinguish NIS’s deliveries of steel from

deliveries by other vendors or parcel delivery companies of

supplies to be used by the miners. We need not adopt the

more restrictive Old Dominion approach, because we believe that NIS’s conduct falls outside of MHSA’s jurisdiction

under the plain language of the statute. Unlike Otis and

Joy, NIS cannot be characterized as an independent contractor providing services at a mine because the minimal

activity performed by NIS does not rise to a level that can

be construed as services performed at a mine. Therefore,

NIS is not subject to the Mine Act, and the MSHA citation

cannot be enforced.

III. CONCLUSION

For the reasons set forth above, NIS’s petition for review

is granted, and the Commission’s decision is REVERSED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—6-20-02