Secretary of Labor v. National Cement Co.

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 Commission-
appointed 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 non-
mine 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 all-
encompassing 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 site-
specific 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.