By Breyana Penn

Few will argue with the fact that the enactment of the Federal Mine Safety and Health Act in 1977 has resulted in considerable efforts being made to ensure that miners report each day to a safe work environment. These strides can now be consistently seen through the decrease in workplace accidents occurring at mine sites and the implementation of safer practices across the globe, just to name a few. What is up for debate, however, is just how clear the standards of the act are in directing operators on how to remain compliant. Yes, the Mine Safety and Health Administration (MSHA) does often put out guidance to clarify much of the ambiguity surrounding many frequently cited standards. Yet, the reality is that this is not the case for all standards, and without further direction from MSHA, more often than not, operators are simply left on their own to both properly interpret the standards, and determine the best methods for the mine to apply in order to remain compliant. Although at first glance this may not appear to be a huge crisis, one major issue this causes is that just as operators may arrive at different interpretations, so may inspectors. The result: a non-issue at one inspection that quickly becomes a citation in another. A review of case law spanning even just the last several years reveals that this is not a new phenomenon. Administrative law judges (ALJ) and the commission are constantly solving disputes over the interpretation of standards, and all signs point to the conclusion that this won’t be an issue that dissipates anytime soon.

One of the most recent instances of this ambiguity comes courtesy of MSHA’s reporting statutes. Part 50 of the 30 C.F.R. governs the reporting requirements of operators. According to this section, an operator is defined as any owner, lessee or other person who operates, controls or supervises a coal mine; or the person, partnership, association, or corporation, or subsidiary of a corporation operating a metal or nonmetal mine, and owning the right to do so; and includes any agent thereof charged with responsibility for the operation of such mine. Anyone falling within this category of an operator is required to report any death, accident, injury, or occupational injury that takes place at the mine to MSHA where the accident or injury should be investigated and an MSHA Mine Accident, Injury and Illness Report Form 7000-1 should be completed and mailed to MSHA within 10 working days following the occurrence. This would logically also lead to the idea that if a contractor or employee of a contractor were present on-site, the reporting of the injury would remain the responsibility of the contractor. But is that actually the case or is the contractor also required to report the injury as well? What if one was to report, but the other didn’t, would the submission of only one report be sufficient? What if two operators, as defined previously, are at the mine when the accident or injury occurs, are they both then required to report? A recent decision out of the Fourth Circuit took an interesting approach to answering all of these questions.

In Dickenson-Russell Coal Co., the court examined the reporting requirements following an incident where an employee of Bates Contracting & Construction, a temporary labor agency that supplied workers to the mine, was injured while working at Dickenson-Russell’s Roaring No. 4 mine in southwestern Virginia. In this instance, Bates reported the accident on MSHA’s 7000-1 form. Dickenson-Russell did not based on its policy in place at the time, which did not require the reporting of injuries sustained by contract workers.

Following this submission, although aware of Bates’ reporting of the injury, an inspector issued a citation to Dickenson-Russell based on what he deemed to be a violation of 30 C.F.R. § 50.20(a) for a failure to timely report an occupational injury and file a Form 7000-1. The citation proposed a $127 civil penalty and its abatement required that Dickenson-Russell essentially resubmit the Form 7000-1 submitted by Bates with a few minor alterations.

Dickenson-Russell contested the citation, arguing that the company was not required to report the incident and that Bates also qualified as an operator, making either entity’s submission satisfactory. The secretary emphatically disagreed, and after an ALJ’s ruling that Bates did not meet the statutory or regulatory requirement of an “operator,” and that Dickenson-Russell was required to report the incident as well, the company appealed and the case eventually landed in the Fourth Circuit’s hands.

Although, the court noted that the ALJ limited his decision to cases where the independent contractor was not acting in a supervisory capacity, forgoing the issue of what the reporting responsibility of mine operators and contractors, is when an injury is sustained by a contract employee who is under the supervision and control of the contractor, this issue was not examined on appeal, either. Here, the court simply found that the injured miner was an employee of Bates and he was under the control and supervision of Dickenson-Russell on the day of his occupational injury, where there were no Bates employees at the mine who were supervising or could have supervised his work. Thus, the question of reporting responsibility in light of a contractor’s supervisory authority remains an uncertainty for now.

Still, the court went on to admit that the possibility does exist that there may be multiple operators engaged simultaneously at a single mine, even though only one of them owns the mine. In these instances, each entity qualifying as an operator must report each and every accident, injury or illness that occurs. Taking this one step further, this means that even if an employee of an operator is not injured, as long as that operator was present on-site at the time of the injury, a Form 7000-1 should be completed and submitted. This apparent duplicity appears to be of no moment for the court, where the rationale behind this requirement falls squarely within the idea that multiple reporting will reduce the likelihood “that accidents and injuries will go unreported as a result of inadvertence or miscommunication between operators obligated to report the same accident or injury. In turn, if unreported incidents are minimized, MSHA’s ‘rates of injury occurrence’ statistics for each operator will be more accurate.” Although this decision does not serve to clear up all of the ambiguity that exists in interpreting standards of the act, and even still leaves a few questions unresolved, it does make clear that reporting is necessary for all operators present on-site when an incident occurs. So, although this method of multiple reporting may on one hand appear to be both duplicative and unnecessary, based on this recent decision, it is now undoubtedly an important step in ensuring avoidance of a future citation and fine.

Breyana A. Penn is an associate in the Denver office of Jackson Lewis P.C. Penn is a member of the Workplace Safety and Health practice group representing clients on an array of administrative, regulatory and public policy issues.