For clients and friends of Jackson Kelly PLLC
Volume 10, Number 9
©2014 Jackson Kelly PLLC
On March 27, 2014, the United States Court of Appeals for the Fourth Circuit upheld the issuance of a citation by the Mine Safety and Health Administration (“MSHA”) that alleged a violation of the reporting requirement under 30 C.F.R. § 50.20(a). The Court held that “anyone who qualifies as an ‘operator’ under 30 C.F.R. § 50.20(a) must report every qualifying accident or injury via filing of a Form 7000-1.” Dickenson‑Russell Coal Company v. Sec’y of Labor, Docket No. 13-1374, p. 16 (4th Cir. 2014). This means that every operator (even where there are two or more) who are subject to the reporting requirement under Part 50.20(a) must report every qualifying accident or injury.
MSHA issued a Section 104(a) citation to Dickenson‑Russell’s Roaring Fork No. 4 mine after an employee of a contractor, Bates Contracting and Construction (“Bates”), injured his elbow causing a small cut. Bates reported the injury to MSHA on a Mine Accident, Injury and Illness Report Form 7000‑1, which identified the location of the injury as the Roaring Fork No. 4 Mine and included the MSHA identification number for the mine, as well as Bates’ contractor identification number. Two months after the injury occurred, MSHA issued the citation to Dickenson‑Russell alleging a violation of 30 C.F.R. § 50.20 because Dickenson‑Russell did not report the injury to Bates’ employee that Bates had already reported. In order to abate the citation, Dickenson‑Russell crossed out Bates’ name and replaced it with “Dickenson‑Russell Coal Company”. Dickenson‑Russell thereafter contested the issuance of the citation.
The Administrative Law Judge (“ALJ”) rejected Dickenson‑Russell’s contention that it did not violate 30 C.F.R. § 50.20 because the injury had, in fact, been timely reported to MSHA. Instead, the ALJ determined that the 7000-1 Form submitted by Bates was “gratuitous” and that the responsibility for reporting fell solely to Dickenson‑Russell. In reaching this decision, the ALJ acknowledged that the contractor was an “operator” pursuant to the definition contained in Section 3 of the Mine Act, 30 U.S.C. § 802(d), but held that the regulatory definition of “operator” provided in 30 C.F.R. § 50.2(c)(1) was controlling. 30 C.F.R. § 50.2(c)(1) defines “operator” as “Any owner, lessee, or other person who operates, controls, or supervises a coal mine.”
Dickenson‑Russell filed a Petition for Discretionary Review with the Federal Mine Safety and Health Review Commission, which was denied and then petitioned for review of the Fourth Circuit. Dickenson‑Russell argued that while both Dickenson‑Russell and Bates were operators as defined by Section 3 of the Mine Act, the injury must be reported by one or the other operator, not both. On appeal, the Secretary argued that the language of Part 50.20(a) is plain and that the terms, “each operator,” mean “every one of two or more.” This position differed from the ALJ’s decision, which as discussed above, held that the Part 50 reporting obligations attach only to an owner-operator and not to every operator. The Secretary did not take the position that Bates was an operator for the purposes of reporting; instead, the Secretary argued that it was “not necessary to determine whether Bates Contracting met the regulatory definition of ‘operator.’”
The Fourth Circuit rejected Dickenson‑Russell’s argument and upheld the Secretary’s so‑called plain language argument. In so doing, the Fourth Circuit relied on the definition of “operator” provided in 30 C.F.R. § 50.2(c)(1) and held that the language was plain. The Court found that, contrary to the ALJ’s decision, “anyone who qualifies as an ‘operator’ under 30 C.F.R. § 50.20(a) must report every qualifying accident or injury via filing of a Form 7000‑1.” Dickenson-Russell Coal Co., at 16. This means that every operator, as defined by 30 C.F.R. § 50.2(c)(1), is required to submit a 7000‑1 Form, irrespective of knowledge or involvement with the injury and supervision of employees. The decision places the same obligation on all of the potential multiple operators at one site but does not clarify the issue as to what entities are operators under Section 50.2, given the exclusion in the language of the contractor provision in the statute.
The decision does little to clear up the reporting requirements as applied by MSHA in a real‑world sense. In fact, the decision runs contrary to how MSHA approached the Dickenson‑Russell case since not every operator at the mine was required to report the injury. Nonetheless, the decision, as it currently stands, places the requirement under 30 C.F.R. § 50.20(a) for reporting occupational injuries on every operator, even if there are multiple operators, so long as the operator meets the definition found in C.F.R. § 50.2(c)(1). 30 C.F.R. § 50.2(c)(1) defines “operator” as “Any owner, lessee, or other person who operates, controls, or supervises a coal mine.” The Court’s decision could be read to imply that no independent contractor is responsible for reporting unless it supervises or controls the entire coal mine. Independent contractors rarely control or supervise an entire mine. Thus, the Court’s plain language argument may have effectively relieved most contractor operators from reporting occupational injuries but that remains to be determined.
This article was authored by Patrick W. Dennison, Jackson Kelly PLLC. For more information on the author, click here.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Kristin R.B. White
(303) 390-0006
kwhite@jacksonkelly.com
For more information, contact:
|
Laura E. Beverage (303) 390-0003 |
Karen L. Johnston (303) 390-0008
|
|
R. Henry Moore (412) 434-8801 |
Michael T. Cimino (304) 340-1000
|
The Jackson Kelly PLLC Occupational Safety and Health News Alert is for informational purposes only and not for the purposes of offering legal advice or a legal opinion on any matter. No reader should act or refrain from acting on the basis of any statement in the Jackson Kelly PLLC Occupational Safety and Health News Alert without seeking advice from qualified legal counsel on the particular facts and circumstances involved.
If you would like to receive future copies of the Jackson Kelly PLLC Occupational Safety and Health News Alert, please provide your name, your job title, your company name, and your e-mail address to Janet Kosman at (303) 390-0038 or jlkosman@jacksonkelly.com. You may also provide the same information of other people in your company who wish to receive these alerts.
If you wish to UNSUBSCRIBE to this legal news alert list, please reply to this e-mail and type the word ‘UNSUBSCRIBE’ in the subject line.
The Rules of the Kentucky Supreme Court require the following: THIS IS AN ADVERTISEMENT.
KRISTIN R.B. WHITE IS RESPONSIBLE FOR THE CONTENTS OF THIS ALERT.
Comments