FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, D.C. 20001

June 4, 2009

ORDER DENYING MOTION FOR SUMMARY DECISION

NOTICE OF HEARING

AND

ORDER TO FILE PREHEARING REPORT

These consolidated cases arise out of a fatal accident that occurred on July 30, 2007, and the citation issued as a result of the fatality. In the civil penalty case the Secretary is petitioning to assess Jim Walter Resources, Inc. (“JWR”) $60,000 for an alleged violation of 30 C.F.R. § 77.1710(g), a mandatory safety standard requiring that an employee wear safety belts and lines where there is a danger of falling. The alleged violation is set forth in Citation No. 7693357, which was issued on November 2, 2007. In addition to alleging a violation of section 77.1107(g), the citation contains the inspector’s findings that the violation was a significant and substantial contribution to a mine safety hazard (S&S) and was the result of JWR’s moderate negligence.

Citation No. 7693357 states as follows:

A contract employee was not utilizing a safety line (lanyard) where there was a danger of falling while installing and dismantling roofing panels on the top of the Jim Walter Resources, Inc., No. 3 maintenance shop. At approximately 2:30 [p.m.], on July 30, 2007, a contract roofing employee was fatally injured when he fell for a distance of approximately 28 feet while dismantling the roof panels. The employee was wearing a safety harness but did not have the safety line (lanyard) secured. There was a Jim Walter [s]upervisor present in the vicinity of the shop at the time of the accident. The operator gave the required hazard training; however, the agent of the operator did not ensure that the contractor was in compliance with the applicable regulation.

THE RELEVANT FACTS

JWR owns the No. 3 Mine located in Brookwood, Alabama. The mine is an underground coal mine with very limited surface activity. See JWR’s Motion for Summary Decision at 3. According to MSHA’s Investigation Report, JWR contracted with Hooper and Chandler Steel Erectors, Inc. (H&C) to replace the roof on the mine’s surface maintenance shop. Work was scheduled to begin on July 30, 2007, the same day the accident occurred. However, before the H&C contract employees began working, JWR conducted required hazard training for them. During the training JWR’s instructor informed the H&C employees that they had to utilize fall protection where there was a danger of falling and that they were responsible for complying with MSHA regulations at all times. After the training was completed, H&C’s employees began to replace the shop roof. At approximately 2:30 p.m, Wade Drew, who was dismantling a maintenance shop roof panel, slipped and fell approximately 28 feet to his death. As the citation notes, Drew did not have a safety line attached to his safety harness.

MSHA investigated the accident and, as a result of the investigation, MSHA’s inspector issued the citation, the company contested its validity and MSHA’s civil penalty petition followed. On March 25, 2009, counsel for JWR filed a Motion for Summary Decision. The Secretary filed a response on April 23, 2009. JWR filed a reply to the Secretary’s response on May 12, 2009. Under Commission Rule 67, 29 C.F.R. § 2700.67(b), a motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows: (1) that there is no genuine issue as to any material fact; and (2) that the moving party is entitled to summary decision as a matter of law.

JWR’S MOTION AND THE SECRETARY’S RESPONSE

JWR maintains it is entitled to vacation of the citation as a matter of law because the facts unquestionably establish section 77.1710(g) does not apply. The company emphasizes section 77.1710 states it applies to “[e]ach employee” and, therefore, “[t]he language of section 77.1710(g) requires that the individual in question be an ‘employee’ of the cited entity.” Motion 4-5, quoting Blue Diamond Coal Co., 30 FMSHRC 962, 964 (October 2008). JWR contends it is undisputed that Wade Drew was an employee of H&C, not of JWR. JWR did not have control over the manner in which the work was performed, nor did it supervise H&C’s employees. Because the Secretary chose to use the word “employee” in section 77.1710 rather than “miner” or “persons” as she did in other regulations, JWR cannot be found to have violated section 77.1710(g) since Drew was not an employee of JWR. Motion 5-6.

            The Secretary responds that Blue Diamond is “clearly incorrect and inconsistent with prior Commission cases interpreting . . . [the regulation to apply] to both production operators [(like JWR)] and contractors [(like H&C)], and with the overwhelming body of law that has held that the Secretary has discretion to cite production operators for violations committed by their contractors.” Petitioner’s Response to Respondent’s Motion for Summary Decision (Response) 2. Therefore, the word “employee” as used in section 77.1710(g) can mean either the employee of the production operator or the contractor, and if the affected employee is employed by the contractor, the production operator may be cited. Response 3.

RULING

I conclude the Secretary is right. I find the Secretary’s interpretation of “employee” as used in section 77.1710(g) to be reasonable and, Blue Diamond aside, to be consistent with established case law. JWR’s restrictive interpretation of “employee” would allow the company to escape liability for a violation committed by its contractor’s employee, contrary to the well recognized principle that the employees of both production operators and their contractors may be subject to mandatory standards promulgated under the Mine Act and that an owner-operator like JWR may be held liable for violations committed by its contractor’s employees. As the United States Court of Appeals for the Fourth Circuit recently stated, “[p]recluding owner-operator liability for independent contractor violations would encourage owners to use contractors as a means of insulating themselves from safety regulations.” Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 315 (4^th Cir. 2008). Thus, when a situation arises in which an employee of a contractor does not wear the protective clothing or devices specified in section 77.1710, the employee has violated the regulation, and the production operator may be held liable for the employee’s violation. In other words, liability does not hinge on whether the worker is employed by the production operator or by the contractor. To fulfill the purpose of the Act, under either situation, the production operator may be liable depending on how the Secretary chooses to proceed.

JWR argues that the principle of expressio unius est exclusio alterius means because the word “employee” was used, all other types of employment relationships must be excluded. Motion 5. But, by the same reasoning, one would conclude that the use of the word “men” in the regulations excludes women (see, e.g., 30 C.F.R. § 77.1603(b)), and this simply is not a correct way to interpret the regulations. Furthermore, JWR argues that it did not exercise control over H&C’s employees, a fact that helps establish that the contractor’s employees were not employees of JWR. JWR’s Reply to Secretary’s Response, 7-9. I find this irrelevant, because the regulation should not be interpreted to require an element of control of the affected person by the production operator, but, rather, that the affected person be employed by either the production operator or the contractor.

 JWR’s Motion for Summary Decision is DENIED, and the cases shall proceed to hearing.

NOTICE OF HEARING

The cases will be called for hearing on September 22, 2009, at 8:30 a.m. in Birmingham, Alabama. The specific hearing site will be designated later.

The proceedings will be conducted pursuant to the Act and 29 C.F.R. § 2700.50, et seq. The primary issues are whether the violation of section 77.1710(g) occurred as alleged, whether the violation was S&S and, if the violation occurred, the amount of the civil penalty that must be assessed taking into consideration the statutory penalty criteria.

Each party shall file with the undersigned and with one another on or before August 28, 2009, a statement regarding each of the following items:

1. Facts that are established by admissions in the pleadings or by

            stipulation of the parties’ counsels.

            2. Facts that remain to be litigated at trial.

            3. Issues of law that remain to be litigated at trial.

            4. Witnesses each party intends to call.

            5. List of exhibits each party intends to offer in evidence.

            7. Estimate as to probable length of the trial.

Any party requesting subpoenas for the attendance of witnesses or the production of documents shall file the request at least 20 days prior to the hearing.

Any person planning on attending the hearing who requires special accessibility features and/or any auxiliary aids (such as sign language interpreters) must request such features and/or aids sufficiently in advance of the hearing to allow accommodation, subject to the limitations set forth in 29 C.F.R. §§ 2706.150(a) and 2706.160(d).

                                                                                                                          David F. Barbour

                                                                                                                          Administrative Law Judge

                                                                                                                          (202) 434-9980