Dickenson-Russell Coal Company, LLC v. Secretary of Labor

Plain-English summary

A temporary worker supervised by Dickenson-Russell was injured while roof bolting at the Roaring Fork No. 4 Mine. His employment agency timely filed MSHA Form 7000-1, but Dickenson-Russell did not file its own report because it believed the contractor's submission was sufficient. Judge Jerold Feldman held that the mine operator controlling and supervising the worker still had an independent duty to report under section 50.20(a), because its management knew the work and conditions surrounding the injury. He rejected high negligence because MSHA already had a timely, accurate report and there was no evidence of concealment. The citation was modified to moderate negligence, and the judge retained the original $127 penalty rather than the Secretary's requested increase to $2,475.

Decision snapshot

• Cited standard: 30 C.F.R. § 50.20(a)
• Outcome: The reporting violation was affirmed, negligence was reduced from high to moderate, and a $127 penalty was assessed.
• Key point: A temporary employment agency's report does not replace the supervising mine operator's own reporting duty, but reasonable reliance on that report may mitigate negligence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004

January 16, 2013

DICKENSON-RUSSELL

COAL COMPANY, LLC

Contestant, 

v.

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent.

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner, 

v.

DICKENSON-RUSSELL

COAL COMPANY, LLC

Respondent.

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CONTEST PROCEEDINGS

Docket No.VA 2009-393-R

Citation No. 8164344; 07/16/2009

CIVIL PENALTY PROCEEDING

Docket No. VA 2009-430

A.C. No. 44-07146-195598

Mine: Roaring Fork No. 4

SUMMARY DECISION

Appearances:  Ronald E. Gurka, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, on behalf of the Petitioner;

R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, Pennsylvania,  on behalf of the Respondent. 

Before:           Judge Feldman

These consolidated contest and civil penalty matters concern a Petition for the
Assessment of Civil Penalty filed by the Secretary of Labor (“the Secretary”) pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d),
against the Respondent, Dickenson-Russell Coal Company, LLC (“Dickenson”). The petition
seeks to impose a civil penalty of $127.00 for Citation No. 8164344 that alleges a non-significant
and substantial (non-S&S) violation

of the accident, injury and illness reporting requirements in section 50.20(a) of the Secretary’s regulations for underground coal mines.

The Secretary
attributes the alleged violation to a high degree of negligence. The reportable injury was
sustained by Charlie Wood, an employee of Bates Contracting and Construction (“Bates”), a temporary employment agency contracted to supply miners to work, under the supervision of Dickenson, at Dickenson’s Roaring Fork No. 4 Mine facility.

Citation No. 8164344 states, in pertinent part:

The mine operator failed to complete, review and submit a 7000-1
accident and injury form for Charlie Wood who was injured on
05/09/2009 while operating a roof bolting machine working on the
active working section. Mr. Wood received an injury from
dislodged roof [material] while performing roof bolting activities
at Dickenson Russell Coal Co. LLC, Roaring Fork No. 4 Mine,
Mine I.D. 4407146. This is a traditional mining position that
requires regular and routine work at the mine. The injured miner
incurred lost time due to this injury and at this time has not
returned to work as indicated by the Contractor records. The 7000-1 form was submitted by the contractor on 05/12/2009, under
the contractor 3 digit Identification number, thus it was attributed
to the Contractor’s accident and injury history. . .

(Joint Stip. 12, Gov. Ex. 2).

Citation No. 8164344 was abated after Dickenson amended a copy of the 7000-1 form
filed by Bates by substituting Dickenson as the “Company Name.” Bates’ original 7000-1 form
identified “Roaring Fork 4" as the “Mine Name,” as well as Dickenson’s “MSHA ID Number”
44-07146. (Gov. Exs. 1, 3).

I. Procedural Framework

Dickenson asserts that a citation against a production mine operator for failure to abide by
the Part 50 reporting requirements is inappropriate if an injury that occurred at its mine site has
already been reported by the temporary employment contractor who employed the injured victim.
Letter from R. Henry Moore to ALJ Feldman (August 22, 2011). The only dispositive issue is
whether the provisions of section 50.20 require a mine operator to file an injury report involving
a contract employee when the victim’s contractor employer has already filed a timely Accident,
Injury and Illness Report on Form 7000-1. Dickenson asserts that it “did not report this
occupational injury to MSHA because Bates had reported it.” (Resp. Opp. at 2). Significantly,
the Secretary does not contend that Dickenson was unaware that Bates had reported the injury
within ten days by submitting the official Form 7000-1.

Disposition by summary decision is appropriate provided (1) the entire record establishes
that there is no genuine issue as to any material fact; and (2) the moving party is entitled to
summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). a filing schedule for the Secretary’s motion for summary decision and Dickenson’s opposition
was established during a March 8, 2012, telephone conference. The Secretary’s motion was filed
on May 2, 2012. The motion was opposed by Dickenson on May 30, 2012.

II. Stipulated Facts

The parties’ stipulated facts are contained in the Secretary’s memorandum in support of
her summary decision motion:

1. The Roaring Fork No. 4 mine, located in Dickenson County, Virginia, is an
   underground coal mine that meets the definition of “mine” set forth in Section
   3(h) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802(h)(1)
   (“Mine Act”), and 30 C.F.R. § 50.2(a).

2. The products of the Roaring Fork No. 4 mine enter commerce, or the operations or products of this mine affect commerce, within the meaning of 30 U.S.C. § 803. The operator of this mine, and every miner at this mine, are therefore subject to the provisions of the Mine Act.

3. Dickenson-Russell Coal Co., LLC (“Dickenson-Russell”) was an owner,
   lessee, or other person who operated, controlled, or supervised the Roaring Fork
   No. 4 mine on May 9, 2009, when the incident referenced in Citation [No.]
   8164344 occurred, and on July 16, 2009, when Citation No. 8164344 was issued.

4. Administrative Law Judge Jerold Feldman has jurisdiction to hear and decide
   this case.

5. Bates Contracting and Construction (“Bates”) is a temporary employment
   agency contractor that supplied miners to work at the Roaring Fork No. 4 mine.

6. An employee of Bates, Charlie Wood, was operating a roof bolter and
   installing cable bolts at the Roaring Fork No. 4 mine on May 9, 2009, when a
   portion of the roof dislodged and struck Mr. Wood on his left elbow, causing a
   small cut.

7. The injury that occurred to Charlie Wood on May 9, 2009 meets the definition
   of “occupational injury” as set forth in 30 C.F.R. § 50.2(e) because it required
   medical treatment to be administered, or because it resulted in inability to perform
   all job duties on any day after the injury, temporary assignment to other duties, or
   transfer to another job.

8. Dickenson-Russell controlled and supervised the work being performed by
   Charlie Wood at the Roaring Fork No. 4 mine on May 9, 2009.

9. Bates did not have a supervisor or any other person at the Roaring Fork No. 4
   mine on May 9, 2009, who could have directed or controlled the work performed
   by Charlie Wood.

10. On May 12, 2009 Bates reported the injury that occurred to Charlie Wood on
    May 9, 2009, to MSHA by completing and submitting the MSHA Mine Accident,
    Injury and Illness Report Form 7000-1 (“7000-1 Form”). A true and accurate
    copy of the 7000-1 Form submitted by Bates is attached hereto as Government
    Exhibit 1.

11. Dickenson-Russell did not submit a 7000-1 Form to MSHA regarding the
    injury that occurred to Charlie Wood at its mine on May 9, 2009. It is Dickenson
    Russell’s position that it did not need to submit a 7000-1 form for an injury to a
    contractor’s employee.

12. Ernie D. Sexton was acting in his official capacity as a federal mine inspector
    on July 9, 2009 when he issued Citation No. 8164344 to Dickenson-Russell for an
    alleged violation of 30 C.F.R. § 50.20 for failing to timely report the injury that
    occurred to Charlie Wood on May 9, 2009 at the Roaring Fork No. 4 mine. A true
    and accurate copy of Citation No. 8164344 that was served on Dickenson-Russell
    or its agent(s) as required by the Federal Mine Safety & Health Act of 1977 is
    attached hereto as Government Exhibit 2.

13. The gravity of the violation alleged in [Citation No.] 8164344 is very low and
    is not “significant and substantial” because there is no likelihood that the alleged
    violation would result in an injury.

14. The Proposed Assessment form marked as Exhibit A attached to the
    Secretary’s petition in Docket No. VA 2009-430 accurately reflects that the size
    of the operator’s business, based on annual tonnage of coal produced in the
    previous calendar year, results in 12 out of a possible 15 points for the mine size,
    and 10 out of a possible 10 points for controller size, under MSHA’s regular
    assessment formula at 30 C.F.R. § 100.3. Therefore, the size of the operator’s
    business is large for the purpose of assessing a penalty pursuant to sections 105(b)
    and 820(i).

15. The Proposed Assessment form marked as Exhibit A attached to the
    Secretary’s petition in Docket No. [VA 2009-]430 accurately reflects that as of the
    date the penalty was proposed, 110 assessed violations were issued and were paid,
    finally adjudicated, or became final orders of the Commission, on 214 inspection
    days at the Roaring Fork No. 4 mine in the 15-month period preceding the
    issuance of the citation at issue in this case, resulting in 5 out of a possible 25
    penalty points for history of previous violations under MSHA’s regular
    assessment formula at 30 C.F.R. § 100.3. There were no repeat violations of the
    mandatory safety standards at issue [in] this case during this period. Therefore,
    Dickenson-Russell has a low history of previous violations for the purpose of assessing a penalty pursuant to sections 105(b) and 110(i) of the Federal Mine Safety & Health Act of 1977, as amended, 30 U.S.C. §§ 815(b) and 820(i).

16. Dickenson-Russell timely abated Citation No. 8164344 in good faith by
    completing and submitting a 7000-1 Form regarding the injury to Charlie Wood
    that occurred on May 12, 2009. A copy of such form is attached hereto as
    Government Exhibit 3.

17. The proposed penalty of $127.00 will not adversely affect the ability of
    Dickenson-Russell to continue in business.

18. Government Exhibit 4 is a true and accurate copy of MSHA Program Policy
    Letter (PPL) No. P09-V-02 that was issued on January 16, 2009.

19. Government Exhibit 5 is a true and accurate copy of a letter that MSHA’s
    District Manager sent to all coal mine operators and temporary employment
    agency contractors in MSHA Coal District 5 on July 27, 2009.

20. Government Exhibits 1 through 5 can be admitted into the record of this
    proceeding without objection.

(Sec’y Mem. at 3-6).

III. Findings and Conclusions

A. Fact of Violation

The parties disagree as to whether Bates’ timely notification of the injury relieved
Dickenson of its obligation to file Form 7000-1 as required by section 50.20(a). Citing a long-standing line of case law, the Secretary relies in part on her unfettered discretion to cite the
operator, independent contractor, or both, for violations of the Mine Act.

(Sec’y Memo. at 8,
citing Speed Mining v. FMSHRC, 528 F.3d 310 (4th Cir. 2008); Sec’y of Labor v. Twentymile
Coal Co. 456 F.3d 151 (D.C. Cir 2006)). As the contractor, mine operator, or both, can be held liable for the same violation, the Secretary asserts that Dickenson was required to comply
with the section 50.20 notification requirement regardless of Bates’ notification of the injury. Id. at 8-9.

Dickenson argues that the Secretary’s reliance on Speed Mining and Twentymile Coal is misplaced, because those cases involved violations by a contractor for which the production
operator was also cited. In contrast, Dickenson contends that the Secretary has no authority to
cite both the mine operator and contractor because no violation has occurred, by virtue of Bates’
timely filing of Form 7000-1. (Resp. Opp. at 10). However, Dickenson’s contention begs the
question because it assumes either the contractor or the mine operator can satisfy the reporting
requirements. Moreover, Dickenson’s position ignores the question of whether the contractor
supervised the injured victim. In any event, the principles in Speed Mining and Twentymile Coal
that allow joint or several liability are not dispositive of the central question.

Rather, the relevant provisions of Part 50 plainly resolve the question of Dickenson’s
filing responsibility in this case. Section 50.2(c)(1) defines “operator” as “any owner, lessee, or other person who operates, controls, or supervises a coal mine.” 30 C.F.R. § 50.2(c)(1). The relevant provisions of section 50.20(a) require that:

Each operator shall report each accident, occupational injury, or
occupational illness at the mine [within ten days]. The principal
officer in charge of health and safety at the mine or the supervisor
of the mine area in which an accident or occupational injury
occurs, or an occupational illness may have originated, shall
complete or review [MSHA Form 7000-1] . . . .

30 C.F.R. § 50.20(a) (emphasis added).

It is axiomatic that the language of specific regulatory provisions is the starting point for their interpretation. See, e.g., Jim Walter Resources, 28 FMSHRC 983, 987 (Dec. 2006)
(citing Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987)). In this regard, regulations
must be read in concert to understand and effectuate their intended purpose. See, e.g., American
Coal Co., 29 FMSHRC 941, 949 (Dec. 2007); RAG Cumberland Res., LP, 26 FMSHRC 639,
647-48 (Aug. 2004); Fluor Daniel, Inc., 18 FMSHRC 1143, 1145-46 (July 1996); Mettiki Coal
Corp., 13 FMSHRC 760, 768 (May 1991).

A fundamental purpose of the Mine Act is to promote the safety of miners by minimizing
their exposure to unsafe or otherwise hazardous working conditions. 30 U.S.C. § 801.
Obviously, to effectuate this goal, the timely notification of MSHA regarding mine accidents and
injuries is essential to enable MSHA to ensure that any hazardous conditions that contributed to
the accident or injury are eliminated.

Clearly, the party responsible for maintaining a safe working environment is the entity
that “operates, controls, or supervises a coal mine.” 30 C.F.R. § 50.2(c)(1). It is this “operator”
in section 50.20(a) that is responsible for notifying MSHA to ensure that any hazardous
conditions cease to exist. Moreover, the supervisor of the mine area where the injury occurred,
who is the individual familiar with the circumstances surrounding the reportable incident, is the
designated person responsible for completing or reviewing Form 7000-1. Here, that individual is
a member of Dickenson management. (Joint Stip. 8, 9). While Bates may be considered an
“operator” under the statutory definition, Dickenson’s assumption that Bates should also be
considered an “operator” under section 50.20(a) is incorrect. (See Resp. Opp. at 5; see also fn. 4,
infra). It is clear that Dickenson, the company controlling and supervising the work performed
by Wood when he was injured, is the contemplated “operator” that is required to file a timely
report pursuant to 50.20(a).

The purpose of the Part 50 reporting requirements is to “utilize information pertaining to
accidents, injuries, and illnesses occurring or originating in mines . . . [to] develop rates of injury
occurrence.” 30 C.F.R. § 50.1. Once MSHA is notified of a reportable incident by either the
temporary employment contractor or the mine operator, the goal of accurately compiling mine
statistics may be achieved. Thus, Dickenson asserts, in essence, that requiring it to report an
injury previously reported by the temporary employment contractor would result in double
reporting that would be counterproductive to the maintenance of accurate reporting statistics.
(Resp. Opp. at 5-6, 8-9).

While compiling accurate reportable incident statistics is a goal of the Secretary, the reporting requirements seek to achieve an additional, and arguably more important, purpose.
(See Gov. Ex. 2 at 2). Section 50.1 provides that the reporting requirements are also intended “to implement MSHA’s authority to investigate, and to obtain and utilize information pertaining
to accidents, injuries and illnesses occurring or originating in mines.” 30 C.F.R. § 50.1. It is true that, as Dickenson contends, once one party has filed the relevant information as to the
circumstances, location, and parties involved in an injury, there is no longer any potential for
concealment of the accident or injury. (Resp. Opp. at 6). However, as discussed above, it is
essential that management personnel familiar with the circumstances of the injury provide the
necessary reporting information to enable MSHA to determine what, if any, additional action is
necessary to maintain a safe working environment. Thus, it is reasonable that MSHA requires
the mine operator to report an injury of a temporary contract employee, as the mine operator is
the sole entity supervising that employee.

In the final analysis, the 7000-1 form filed by Bates, the temporary employment agency
contractor in this case, which contained all relevant information, such as mine site and Mine ID
number, was gratuitous in that it did not relieve Dickenson of its obligations under section
50.20(a). Consequently, the Secretary has demonstrated the section 50.20(a) violation cited in
Citation No. 8164344.

The holding that the Secretary has established the fact of the cited violation should be
narrowly construed to the facts in this case concerning temporary employment personnel. This
decision does not address the reporting responsibility of mine operators and contractors under
section 50.20 when an injury is sustained by a contract employee who is under the supervision
and control of the contractor.

B. Negligence

The Secretary has attributed Dickenson’s reporting failure to a high degree of negligence.
While Commission Judges assess civil penalties de novo, it is noteworthy that Part 100 of the
Secretary’s regulations containing criteria for proposing civil penalties designates negligence as
high when the operator “knew or should have known of the violative condition or practice, and
there are no mitigating circumstances.” 30 C.F.R. § 100.3(d) (Table X).

The Secretary alleges that Dickenson’s failure to submit a 7000-1 form was attributable to
a high degree of negligence because of Dickenson’s apparent disregard of its reporting obligation in an attempt to elevate its safety record. (Sec’y Memo. at 14-15). In support of its assertion that
Dickenson’s failure to notify was an attempt to mislead, the Secretary relies on a Program Policy
Letter (“PPL”) issued several months before Wood’s May 9, 2009, injury. PPL No. P09-V-02, Jan. 16, 2009 (Gov. Ex. 4). This PPL requires mine operators to report accidents involving
personnel provided by temporary employment agencies.

Specifically, the PPL was concerned
that, where operators obtain miners through temporary employment agencies, “some operators
are not reporting Part 50 information involving these temporary agency employees.” Id. at 2.

In support of high negligence, the Secretary also relies on an Administrative Law Judge
decision that rejected a mine operator’s asserted good faith belief that the duty to report an
accident involving a temporary employee rested with the temporary employment agency
contractor. Surface Minerals, Docket No. VA 2010-184 (Nov. 2011) (ALJ Moran), slip op. at 11. However, in Surface Minerals, neither the mine operator nor its contractor reported the
accident of the temporary employee. Id. at 3. Moreover, to address instances where the requisite
reports were not filed, PPL No. P09-V-02 clarified that temporary employment personnel are
“miners” covered under the injury reporting requirements of Part 50. Clearly, failures to notify
MSHA, such as those discussed in Surface Minerals and PPL P09-V-02, despite the mine
operator’s reporting responsibility under section 50.20, would indeed evidence high negligence.

Turning to the facts of this case, it is significant that the Secretary does not assert that
Dickenson was unaware Bates had filed the pertinent 7000-1 form. Thus, it is uncontested that
Dickenson knew of Bates’ timely filing, and that it presumably relied on it in not filing an injury
report of its own. The form filed by Bates provided the relevant MSHA Mine ID Number, and
identified the specific mine site where the injury occurred. (Gov. Ex. 1). Therefore, the record
evidence does not reflect that Dickenson’s failure to also file a report was an effort to conceal the
occurrence of the injury from MSHA. Notably, Dickenson concedes that if Bates had not
reported the injury, Dickenson could be held liable for the failure to report. (Resp. Opp. at 7).
While Dickenson’s reliance on Bates’ injury report as sufficient notification may have been
misplaced, it is not evidence of a high degree of negligence. The facts in this case reflect that
Dickenson’s reporting failure is attributable to no more than a moderate degree of negligence.  

C. Civil Penalty

The Commission outlined the parameters of its responsibility for assessing civil penalties
in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000):

The principles governing the Commission’s authority to assess civil
penalties de novo for violations of the Mine Act are well established.
Section 110(i) of the Mine Act delegates to the Commission “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary penalties, the
Commission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the business of

the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business,
[5] the gravity of the violations, and [6] the demonstrated good
faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)).

In keeping with this statutory requirement, the Commission has held that “findings of fact
on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983). Once findings on the statutory criteria have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion, which is bounded by proper
consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera
Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the de novo
assessment of civil penalties does not require “that equal weight must be assigned to each of the
penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

Dickenson has stipulated that imposition of the civil penalty proposed in this case will not
adversely affect its ability to continue in business, and that the penalty is not otherwise
inappropriate given the size of the Respondent’s operations. The Secretary has stipulated that the
gravity alleged in Citation No. 8164344 is low in that there is no likelihood that the alleged
violation will result in injury. There is no evidence that Dickenson’s history of violations is an
aggravating factor, and the violative condition was timely abated. (Joint Stips. 13-17).

Although the Secretary initially proposed a civil penalty of $127.00 for Citation No. 8164344, the Secretary now seeks to increase the proposed penalty to $2,475.00. The increased proposed penalty is equivalent to the $2,475.00 imposed by Judge Moran in
Surface Minerals, supra. However, as previously discussed, as distinguished from this case,
Surface Minerals involved a situation where neither the mine operator nor the temporary
employment agency contractor filed an accident report. Here, there is no evidence that
Dickenson was unaware that Bates had filed the requisite 7000-1 form containing the relevant
mine site and mine identification number. Consequently, the modification of Citation No. 8164344 to reflect that the violative condition was the result of moderate negligence
warrants no more than the $127.00 civil penalty initially proposed by the Secretary.

ORDER

In view of the above, IT IS ORDERED that the Secretary’s motion for summary
decision IS GRANTED with respect to the fact of the cited reporting violation. However,
consistent with this decision, IT IS FURTHER ORDERED that Citation No. 8164344 IS MODIFIED to reflect that a moderate degree of negligence is attributed to Dickenson-Russell
Coal Company, rather than the high degree of negligence initially proposed.

IT IS FURTHER ORDERED that Dickenson-Russell Coal Company SHALL PAY a
civil penalty of $127.00 in satisfaction of Citation No. 8164344 within 40 days of the date of this
decision. Upon receipt of timely payment, the captioned civil penalty and contest proceedings
ARE DISMISSED. 

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution:

Ronald E. Gurka, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd.,
22nd Floor, Arlington, VA 22209

R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave.,
Pittsburgh, PA 15222

/tmw