Dickenson-Russell Coal Co. v. Sec'y Labor

• Decision Date: 27 March 2014
• Docket Number: No. 13–1374.,13–1374.
• Citation: 747 F.3d 251
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: DICKENSON–RUSSELL COAL COMPANY, LLC, Petitioner, v. SECRETARY OF LABOR; Federal Mine Safety and Health Review Commission, Respondents.

747 F.3d 251

DICKENSON–RUSSELL COAL COMPANY, LLC, Petitioner,

v.SECRETARY OF LABOR; Federal Mine Safety and Health Review Commission, Respondents.

No. 13–1374.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 11, 2013.

Decided: March 27, 2014.

ARGUED:Patrick Wayne Dennison, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Petitioner. Samuel Charles Lord, United States Department of Labor, Arlington, Virginia, for Respondents. ON BRIEF:Ralph Henry Moore, II, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Petitioner. M. Patricia Smith, Solicitor of Labor, Washington, D.C., Heidi W. Strassler, Associate Solicitor, Office of Civil Penalty Compliance, MSHA, W. Christian Schumann, Appellate Litigation, United States Department of Labor, Arlington, Virginia, for Respondent Secretary of Labor.

Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges.

Petition for review denied by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

TRAXLER, Chief Judge:

Dickenson–Russell Coal Company (“Dickenson Coal”) was cited by the Secretaryof Labor for violating the Federal Mine Safety and Health Act of 1977, seePub.L. No. 95–164, 91 Stat. 1290, by failing to report an injury at its Roaring Fork No. 4 mine within ten days of its occurrence. Dickenson Coal contested the citation on the grounds that Bates Contracting and Construction, Inc. (“Bates”), a contractor that supplied miners to work the Roaring Fork No. 4 mine, had already reported the incident. An Administrative Law Judge (“ALJ”) rendered a summary decision in the Secretary's favor, and the Federal Mine Safety and Health Review Commission (the “Commission”) declined to exercise discretionary review of the ALJ's decision. Dickenson Coal now petitions this court for review. For the reasons that follow, we deny the petition.

I.

A.

In 1977, perceiving “an urgent need to provide more effective means and measures for improving the working conditions and practices in the Nation's coal or other mines in order to prevent death and serious physical harm,” 30 U.S.C. § 801(c), Congress significantly strengthened federal regulatory oversight of the mining industry by enacting the Federal Mine Safety and Health Act (the “Act”), see Donovan v. Dewey, 452 U.S. 594, 603, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) (“[T]he Mine Safety and Health Act applies to industrial activity with a notorious history of serious accidents and unhealthful working conditions” and “is specifically tailored to address those concerns.”). Passage of the Act followed a series of tragic mining accidents from which Congress concluded that the then-existing regulatory scheme “had proven too weak” and that a major regulatory overhaul was necessary. Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm'n, 715 F.3d 631, 634 (7th Cir.2013). ¹

Pursuant to the Act, the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), see29 U.S.C. § 557a, established “mandatory health [and] safety standards for the protection of life and prevention of injuries in coal or other mines,” 30 U.S.C. § 811(a). To ensure compliance with these mandatory safety and health standards, the Act prescribes regular mine inspections by the MSHA, the frequency of which depends upon the type of mine being inspected. For underground mines, such as the Roaring Fork No. 4 mine, the MSHA is required to conduct inspections four times annually. See30 U.S.C. § 813(a). In the event the MSHA finds a violation of the Act or of any mandatory health or safety regulation, it must issue a citation to the operator of the mine and order that corrective action be taken. See30 U.S.C. § 814(a) (providing that the Secretary shall issue citations for violations of MSHA regulations and specify a “reasonable time for ... abatement”). The Act defines a mine “operator” 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). The MSHA is further empowered in certain instances to issue an order of withdrawal requiring mining operations to cease until compliance is achieved, see30 U.S.C. § 814(b), (d); id. § 817(a), and to assess civil penalties against an operator who has been found in violation of the Act or MSHA safety standards, see30 U.S.C. § 815(a).

Despite the substantial regulatory oversight granted to the Secretary, however, Congress intended that “primary responsibility” for ensuring safe working conditions lie with the operators and the miners. 30 U.S.C. § 801(e); see Myers v. United States, 17 F.3d 890, 903–04 (6th Cir.1994) (placing primary responsibility upon MSHA inspectors to maintain safe working conditions would be “manifestly unreasonable and unjustified” “[i]n light of the clear Congressional purpose to ensure that the primary responsibility for safety remains with the mine owners and miners”). To that end, the Act imposes several affirmative duties upon mine operators, including the duty to notify the MSHA of “any accident occurring in any coal or other mine,” 30 U.S.C. § 813(j); the duty to investigate any accident to determine its cause and establish measures to prevent a recurrence, see30 U.S.C. § 813(d); and the duty to maintain and make available to the MSHA records of any such accident, see30 U.S.C. § 813(d).

Our focus in this appeal is upon an operator's duty to report accidents to the MSHA. See30 U.S.C. § 813(j). Pursuant to the Act, the Secretary adopted implementing regulations (the “Part 50 regulations”) establishing a system governing an operator's statutorily required duty to report accidents, injuries, and illnesses occurring in its mine to the MSHA. See 30 C.F.R. Part 50. As mandated by these regulations,

Each operator shall report each accident, occupational injury, or occupational illness at the mine. 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 ... shall complete or review [an MSHA Mine Accident, Injury, and Illness Report Form 7000–1].... The operator shall mail completed forms to MSHA within ten working days after an accident or occupational injury occurs ...

30 C.F.R. § 50.20(a) (emphasis added). Accordingly, any person or entity qualifying as an “operator” under this regulation was required to report within 10 days accidents or injuries occurring at the operator's mine by filing an MSHA Form 7000–1.² The Part 50 regulations include their own definition of the term “operator” that is identical to the statutory definition except that it does not expressly include “independent contractor” within the meaning of “operator.” See30 C.F.R. § 50.2(c)(1) (“As used in [Part 50] ... Operator means ... [a]ny owner, lessee, or other person who operates, controls, or supervises a coal mine.”). There may be multiple “operators” engaged simultaneously at a single mine even though only one of them owns the mine. See Speed Mining, Inc. v. Fed. Mine Safety & Health Review Comm'n, 528 F.3d 310, 315 (4th Cir.2008).

Part 50 reporting requirements serve both enforcement and administrative purposes. The local MSHA district office uses the Form 7000–1 to determine whether to conduct an investigation of the operation. See30 C.F.R. § 50.11(a). The national MSHA Office of Injury and Employment Information compiles information from the reports to determine incidentrates for every operator, see30 C.F.R. § 50.1, and identifies operators in need of greater regulatory supervision.

B.

Dickenson Coal is the owner-operator of the Roaring Fork No. 4 Mine, an underground coal mine in southwestern Virginia. It is undisputed that Dickenson Coal is an “operator” subject to the reporting requirements under the Act and the regulations. See30 U.S.C. § 802(d); 30 C.F.R. 50.20(a). Bates Contracting is a temporary labor agency that supplied miners to work at the Roaring Fork No. 4 mine. On May 9, 2009, Charlie Wood, an employee of Bates, was installing roof bolts when a portion of the coal “roof” fell and struck him on the elbow. The parties stipulated that Wood's accident resulted in a reportable “occupational injury” within the meaning of 30 C.F.R. § 50.2(e).³ Although Wood was an employee of Bates, he was under the control and supervision of personnel from Dickenson Coal on the day of his occupational injury. There were no Bates employees at the Roaring Fork No. 4 mine who were supervising or could have supervised Wood's work.

On May 12, 2009, Bates, rather than Dickenson Coal, submitted a Form 7000–1 reporting Wood's occupational injury to the MSHA. Bates' 7000–1 form identified “Roaring Fork 4” as the “Mine Name,” provided the proper MSHA identification number (44–07146) for the Roaring Fork No. 4 mining operation, and included its own contractor identification number. Dickenson Coal, however, did not file a Form 7000–1 or otherwise report Wood's injury. Dickenson Coal claimed that its policy at the time was not to report occupational injuries or illnesses suffered by an employee of an independent contractor like Bates.

On July 16, 2009, the MSHA issued a citation to Dickenson Coal for failure to timely report an occupational injury and file a Form 7000–1 as required by 30 C.F.R. § 50.20(a). The issuing MSHA inspector was aware that Bates submitted a Form 7000–1 but nonetheless found that Dickenson Coal was liable for failing to report the injury.⁴ The MSHA also proposed a $127.00 civil penalty for the citation. Dickenson Coal subsequently abated the citation essentially by re-submitting the Form 7000–1 submitted by Bates with slight alterations.⁵

Dickenson Coal contested the citation before the Commission. See30 U.S.C. §§ 815(d), 823.⁶ The Secretary moved for summary disposition in light of the undisputed facts that Dickenson Coal is an operator under the Act and Part 50 regulations and that Wood suffered...