Aggregates Manager

June 2014

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Page 26 of 207

WHO FILES Contract Injury Reports? R ecently, in Dickenson-Russell Coal Co. v. Secretary of Labor, Docket No. 13-1374 (4th Cir. 2014), the Fourth Circuit Court of Appeals upheld a judge's decision that a mine operator providing supervision to a contract employee of a temporary employment agency working at the mine must report the qualifying ac- cident or injury involving that employee by filing an MSHA Form 7000-1. Dickenson-Russell (Dickenson) received a non-S&S citation alleging a violation of 30 C.F.R. § 50.20(a) for not reporting an injury sustained by an employee of a temporary employment agency, Bates Contracting and Construction (Bates), which was under the supervision of Dickenson, at Dick- enson's Roaring Fork No. 4 Mine. Bates filed an MSHA Form 7000-1 reporting the injury in a time- ly manner and prior to the issuance of Dickenson's citation. Before the judge was the issue of whether the provisions of § 50.20 require a mine operator to file an injury report involving a contract employee when the contractor has already timely filed a 7000- 1 for that injury. The Secretary, relying on Speed Mining v. FMSHRC, 528 F.3d 310 (4th Cir. 2008) and Sec- retary of Labor v. Twentymile Coal Co., 456 F.3d 151 (D.C. Cir. 2006), argued since the contractor, mine operator, or both, can be held liable for the same violation, Dickenson was required to comply with § 50.20 regardless of Bates's filing of the Form 7000-1. Dickenson argued that the Secretary's reli- ance on Speed Mining and Twentymile Coal was misplaced as those cases involved violations by a contractor for which the production operator was also cited. Dickenson further argued that the Secre- tary had no authority to cite both the mine operator and contractor because no violation had occurred since Bates had timely filed the Form 7000-1. The judge looked beyond the parties' arguments to the provisions of Part 50 to resolve the question of filing responsibility. 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). Section 50.20(a) requires, in relevant part: Each operator shall report each accident, occupational injury, or occu- pational illness at the mine [within 10 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]. . . . Relying on these two regulatory definitions, the judge found the party responsible for maintaining a safe working environment is the entity that "oper- ates, controls, or supervises a coal mine." Hence, it is this "operator" in § 50.20(a) that is responsible for notifying MSHA to ensure that any hazardous con- ditions cease to exist. The judge also found the su- pervisor of the mine area where the injury occurred, who is the individual familiar with the circumstances surrounding the reportable incident, is the designat- ed person responsible for completing or reviewing Form 7000-1. Under the facts of this specific case, the judge found that a member of Dickenson man- agement met the requirements of § 50.20(a) since Dickenson was the company controlling and super- vising the work performed by the contract employee when he was injured. In reaching this conclusion, the judge was very careful to limit his holding to the specific facts of this case and that his decision did not address the reporting responsibility of mine operators and con- Christopher G. Peterson is a member in Jackson Kelly PLLC's Denver office, where he practices with the Occupational Safety and Health Practice Group. He can be reached at 303-390-0009 or via email at Who files injury reports depends on who is directly supervising the contract worker, at least for now. by Christopher G. Peterson ROCK LAW • 25

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