FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004

January 16, 2013

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). < After it became clear that the parties were prepared to stipulate to all relevant material facts, span style="color: #000000">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 (4^th 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 (9^th 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., 22^nd Floor, Arlington, VA 22209

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

/tmw