[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 1