Petition for Review from the Benefits Review Board United States Department of Labor.
Before: SEITZ, HIGGINBOTHAM and BECKER, Circuit Judges.
When, in 1977, Congress expanded the coverage of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq., to provide for Black Lung benefits to employees of coal mine construction companies, it did so by expanding the definition of "miner" to include coal mine construction workers exposed to "coal dust." A subsequent regulation promulgated by the Secretary of the Department of Labor clarified the definition of miner to include coal mine construction workers exposed to "coal mine dust." 20 C.F.R. § 725.202(a) (1978). Appellant, Williamson Shaft Construction Company ("Williamson"), a coal mine construction company required by the Benefits Review Board to pay Black Lung benefits to a former employee, alleges that the regulation constitutes an unwarranted and invalid rewriting of the statute. However, the legislative history reveals that in 1969 Congress understood the terms "coal dust" and "coal mine dust" to be interchangeable, and there is scant evidence that Congress understood the terms differently in 1977. We therefore conclude hat the regulation was a legitimate clarification of the statute. Hence, we deny the petition for review and affirm the award of benefits.*fn1
I. FACTS AND PROCEDURAL HISTORY
Appellee-claimant, Charles Phillips, worked as an underground coal miner and coal mine construction worker from 1946 through 1972. His co-appellee is the United States Department of Labor's Office of Workers' Compensation Programs, which also urges that we uphold the award of benefits.
Between 1946 and 1953, Phillips was an underground miner for three different coal mine companies. From 1955 until 1966, he worked in coal mine construction for a fourth company. From 1966 to 1972, he worked intermittently for Williamson on several coal mine construction projects.
Coal mine operators often hire independent construction companies such as Williamson to construct the facilities and structures necessary for mining. Coal mine construction consists of preparing vertical openings (shafts) and inclined tunnels (slopes) between the surface of a coal mine and a coal seam. The purpose of the shafts and seams is to move men and material in and out of a mine. Williamson's brief describes the actual processes of coal mine construction as follows:
The construction of shafts [and slopes] can be divided into three different phases. The first phase involves preparing the surface area. During this phase construction equipment is moved into the area and put in place. . . . The second phase consists of excavating the shaft down to the desired coal seam. Once an initial excavation is made and collared to a depth of about twenty-five feet, further excavation is performed by drilling, blasting, and mucking. . . . The material removed during excavation consists mainly of sandstone, limestone, shale and clay. A small amount of coal is also removed from incidental coal seams which may be encountered before reaching the coal seam which is the goal of excavation. . . . Once the shaft reaches the main coal seam, the third, or final stage of construction begins. This stage is known as "bottom work." During this phase, enough coal is excavated from the seam so that the mining company will have sufficient space to begin mining operations.
Appellant's brief at 4-5. Thus, Williamson's construction workers spend a portion of their time (the third phase) in an underground mine. It was calculated that during his employment with Williamson, Phillips worked in an underground coal mine for anywhere from three to six months (the exact amount of time was disputed on the record). The rest of the time he worked around a coal mine.
in 1983 Phillips applied for Black Lung Benefits. The Secretary of Labor recommended that he be awarded benefits against Williamson, the "responsible operator."*fn2 Before the Administrative Law Judge ("ALJ"), Williamson argued that it was not the "responsible" operator under the statute because it had not employed Phillips as a "miner" for one year as required by the regulation defining "responsible operator." 20 C.F.R. § 725. 493(a)(1). Rather, Williamson contended, it employed Phillips as a miner for a maximum of six months, i.e., that period during which he excavated coal or was otherwise working at the bottom of the shafts in underground mines.
Williamson's position was based on the language of the Black Lung Benefits Reform Act of 1977, 30 U.S.C. § 801 et seq. (1982), which makes coal mine construction workers "miners" to the extent that they are exposed to "coal dust." 30 U.S.C. § 902(d). According to Williamson, "coal dust" is dust that comes directly from coal, and therefore Phillips could have been exposed to coal dust only during the three to six months he worked in the underground coal mines; hence, he was a "miner" for less than a year. The ALJ rejected this position, citing regulation 20 C.F.R. § 725.202(a), promulgated subsequent to the 1977 Act, which states that a construction worker is a "miner" to the extent that he is exposed to 'coal mine dust.' Because 20 C.F.R. § 725.202(a) establishes a rebuttable presumption that a coal mine construction worker is exposed to coal mine dust, and Williamson made no attempt to rebut that presumption, the ALJ found that Phillips was a "miner" for the entire duration of his employment with Williamson.
Before the Benefits Review Board, Williamson challenged the validity of the regulations, alleging that it contravenes the charter of the underlying statute by defining as miners construction and transportation workers exposed for a year to "coal mine dust," whereas the statute provided coverage only to those exposed to "coal dust."*fn3 The Board summarily rejected this argument, citing its previous decision in George v. ...