Filed: Mar. 27, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1374 DICKENSON-RUSSELL COAL COMPANY, LLC, Petitioner, v. SECRETARY OF LABOR; FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondents. On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission. (VA 2009-393-R; VA 2009-430) Argued: December 11, 2013 Decided: March 27, 2014 Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges. Petition for review denied by published opinion.
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1374 DICKENSON-RUSSELL COAL COMPANY, LLC, Petitioner, v. SECRETARY OF LABOR; FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondents. On Petition for Review of an Order of the Federal Mine Safety and Health Review Commission. (VA 2009-393-R; VA 2009-430) Argued: December 11, 2013 Decided: March 27, 2014 Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges. Petition for review denied by published opinion. ..
More
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1374
DICKENSON-RUSSELL COAL COMPANY, LLC,
Petitioner,
v.
SECRETARY OF LABOR; FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION,
Respondents.
On Petition for Review of an Order of the Federal Mine Safety
and Health Review Commission. (VA 2009-393-R; VA 2009-430)
Argued: December 11, 2013 Decided: March 27, 2014
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.
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.
2
TRAXLER, Chief Judge:
Dickenson-Russell Coal Company (“Dickenson Coal”) was cited
by the Secretary of Labor for violating the Federal Mine Safety
and Health Act of 1977, see Pub. 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
3
U.S. 594, 603 (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”), see 29
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. See 30 U.S.C. § 813(a). In the event the MSHA finds
1
Although mining accidents decreased after passage of the
Act, Congress amended the Act in 2006, see MINER Act of 2006,
Pub. L. No. 109-236, 120 Stat. 493, in the wake of another
mining accident that produced numerous fatalities at the Sago
Mine near Tallmansville, West Virginia.
4
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. See 30 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, see 30 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, see 30 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
5
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, see 30 U.S.C. § 813(d); and the duty to
maintain and make available to the MSHA records of any such
accident, see 30 U.S.C. § 813(d).
Our focus in this appeal is upon an operator’s duty to
report accidents to the MSHA. See 30 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
6
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.” See 30 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. See 30 C.F.R. § 50.11(a). The national MSHA
Office of Injury and Employment Information compiles information
from the reports to determine incident rates for every operator,
see 30 C.F.R. § 50.1, and identifies operators in need of
greater regulatory supervision.
2
Form 7000-1 requires the disclosure of general information
such as the name of the mine in which the accident occurred and
the MSHA identification number assigned to the mining operation;
the name and identification number of the independent
contractor, if any; and a summary description of the accident,
including the date, time and location of the accident within the
mine and a description of any resulting injuries.
7
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.
See 30 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-
3
Wood suffered an “occupational injury” because it required
medical attention and resulted in Wood’s temporary inability to
perform his job duties. See 30 C.F.R. § 50.2(e).
8
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
4
In his Citation to Dickenson Coal, the inspector
explained:
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. The Mine’s
failure to complete and file the lost time accident
report accurately, will result in a false Incidence
Rate being assigned to the Mine Identification Number.
The Mine’s Incidence Rate will not reflect the true
accident history for employees performing traditional
mining jobs at this operation, thereby limiting the
mine and regulatory agencies’ ability to recognize and
address accident trends.
J.A. 24-25.
9
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. See 30 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 an “occupational injury”
under 30 C.F.R. § 50.2(e). The Secretary argued that Dickenson
Coal’s position that it was not required to report an injury to
an independent contractor’s employee was contrary to the plain
language of the regulation, which requires “[e]ach operator” to
report “each . . . occupational injury.” 30 C.F.R. § 50.20(a).
In response, Dickenson Coal argued that Bates also qualified as
an “operator” within the meaning of 30 C.F.R. § 50.20(a), and
therefore that either Bates or Dickenson Coal could have
satisfied the obligation to report Wood’s injury. According to
Dickenson Coal, the only sensible reading of the regulation was
5
The Form 7000-1 submitted by Dickenson Coal was simply a
copy of Bates’ Form 7000-1 with Bates’ company name and
Contractor Identification Number struck through, replaced by
Dickenson Coal’s name. The signature of Bates’ Human Resources
official had also been struck and replaced with the signature of
a Dickenson Coal employee.
6
When an order is contested, an ALJ appointed by the
Commission conducts an administrative hearing and renders a
decision. 30 U.S.C. § 823(d)(1).
10
that only one of the operators, either Dickenson Coal or Bates
but not both, was required to report the injury.
The ALJ granted “summary decision” to the Secretary. The
ALJ rejected Dickenson Coal’s argument that Bates qualified as
an “operator” within the meaning of 30 C.F.R. § 50.20(a). The
ALJ observed that although Bates might qualify as an “operator”
under the statutory definition, see 30 U.S.C. § 802(d), it was
the regulatory definition that controlled the meaning of the
word “operator” in the Part 50 regulations. And, because Bates
was not “operating, controlling or supervising” mining
activities at Roaring Fork No. 4 mine when Wood was injured, the
ALJ concluded that Bates did not meet the regulatory definition
of “operator,” 30 C.F.R. § 50.2(c)(1), and therefore was not
obligated as an operator to “report each accident [or]
occupational injury” within ten days, 30 C.F.R. § 50.20(a).
Accordingly, the ALJ found that the Form 7000-1 filed by Bates
to report the injury “was gratuitous in that it did not relieve
Dickenson of its [reporting] obligations under section
50.20(a).” J.A. 75 (emphasis added). The ALJ was careful to
limit his decision to cases where the independent contractor was
not acting in a supervisory capacity, expressly leaving for
another day the question of “the reporting responsibility of
mine operators and contractors under section 50.20 when an
11
injury is sustained by a contract employee who is under the
supervision and control of the contractor.” J.A. 75.
Dickenson sought discretionary review of the ALJ’s decision
before the full Commission, but the Commission declined to
exercise its review authority. See U.S.C. § 823(d)(2)(A)(i).
Accordingly, the ALJ’s decision constitutes the final decision
of the Commission, see 30 U.S.C. § 823(d)(1), which is subject
to review in this court, see 30 U.S.C. § 816(a)(1).
II.
The issue presented to the court requires us to review an
agency’s interpretation of its own regulations. Accordingly,
our analysis proceeds under Auer v. Robbins, 519 U.S. 452, 461
(1997), instead of Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.,
467 U.S. 837 (1984), which establishes
the deferential framework for reviewing agency interpretations
of statutes. See Shipbuilders Council of Am. v. U.S. Coast
Guard,
578 F.3d 234, 242 (4th Cir. 2009) (“Chevron deference
applies to an agency’s interpretation of a statute while Auer
deference applies to an agency’s interpretation of its own
regulation.”) (internal quotation marks omitted).
Auer deference, like Chevron deference, “is warranted only
when the language of the regulation is ambiguous.” Christensen
v. Harris Cnty., 529 U.S. 576, 588 (2000). When the “regulation
in question [is] unambiguous, . . . adopting the agency’s
12
contrary interpretation would permit the agency, under the guise
of interpreting a regulation, to create de facto a new
regulation.” Chase Bank USA v. McCoy, 131 S. Ct. 871, 882
(2011) (internal quotation marks omitted). Thus, our first task
is to “determine whether the regulation itself is unambiguous;
if so, its plain language controls.” Ohio Valley Envtl.
Coalition v. Aracoma Coal Co.,
556 F.3d 177, 193 (4th Cir. 2009)
(emphasis added).
If the regulation is ambiguous, we apply Auer deference,
meaning that the agency’s interpretation controls unless that
interpretation is “plainly erroneous or inconsistent with the
regulation.” Auer, 519 U.S. at 461 (internal quotation marks
and citation omitted); see Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 512 (1994) (stating that courts must defer “unless
an ‘alternative reading is compelled by the regulation’s plain
language or by other indications of the Secretary’s intent at
the time of the regulation’s promulgation’”); Martin v.
Occupational Safety & Health Review Comm’n,
499 U.S. 144, 150–51
(1991) (explaining that the agency’s interpretation of the
regulation controls “so long as it is ‘reasonable,’ that is, so
long as the interpretation ‘sensibly conforms to the purpose and
wording of the regulations’”(citation omitted)). Our review of
the agency’s interpretation in this context is therefore “highly
deferential.”
Aracoma, 556 F.3d at 193.
13
III.
A.
Dickenson Coal raises two challenges to the ALJ’s
conclusion that it violated 30 C.F.R. § 50.20(a) by failing to
file a Form 7000-1 with respect to Wood’s injury. First,
Dickenson Coal contends that the ALJ incorrectly concluded that
the meaning of “operator” in 30 C.F.R. § 50.20(a), a regulation
which is contained in the Part 50 regulations, is controlled by
the regulatory definition of “operator” set forth in Part 50
rather than the statutory definition of “operator.” Dickenson
Coal argues that under the statutory definition, an independent
contractor such as Bates is clearly an “operator.” 30 U.S.C. §
802(d) (defining “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”). Building on the first argument,
Dickenson Coal contends that when there is more than one
“operator” who would be required under § 30 C.F.R. § 50.20(a) to
report the same injury—as there would be if the statutory
definition controls—the regulation requires only one of the
operators, not both, to file a Form 7000-1 reporting the injury.
Following this logic, Dickenson Coal concludes that because
Bates in fact filed a Form 7000-1 reporting Wood’s injury in a
timely fashion, there was no violation. Stated differently,
14
Dickenson Coal contends that it was relieved of its obligation
to report Wood’s injury under § 50.20(a) when Bates filed the
Form 7000-1 reporting it.
B.
Dickenson Coal devotes a substantial portion of its case to
quarreling with the ALJ’s decision not to use the statutory
definition of “operator,” which expressly includes “independent
contractor[s],” but instead to utilize the regulatory definition
of “operator,” which does not. Dickenson Coal’s obligation to
report Wood’s injury, however, does not depend upon whether
Bates is considered an “operator” for purposes of 30 C.F.R. §
50.20(a). Even assuming Bates is an “operator,” its filing of
the Form 7000-1 injury report did not relieve Dickenson Coal of
the obligation to file its own report.
Our analysis begins with the language of the regulation to
“determine whether the regulation itself is unambiguous,”
Aracoma, 556 F.3d at 193, on the question of whether the filing
of a Form 7000-1 by one operator to report an injury to MSHA
relieves any other operator of its duty to file a Form 7000-1
with respect to the same injury. In relevant part, the
regulation states:
Each operator shall report each accident, occupational
injury, or occupational illness at the mine. . . .
The operator shall mail completed [MSHA Mine Accident,
Injury, and Illness Report Form 7000-1s] to MSHA
within ten working days after an accident or
15
occupational injury occurs or an occupational illness
is diagnosed.
30 C.F.R. § 50.20(a) (emphasis added). When construing statutes
and regulations, we begin with the assumption that the words
were meant to express their ordinary meaning. See INS v. Elias–
Zacarias, 502 U.S. 478, 482 (1992). Here, the key phrases are
“each operator” and “each accident.” The ordinary meaning of
the word “each” is “every one of two or more people or things
considered separately.” Merriam–Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/each (last visited
Mar. 6, 2014) (emphasis added). According the regulation its
regular and ordinary meaning, then, we read the regulation to
mean that anyone who qualifies as an “operator” under 30 C.F.R.
§ 50.20(a) must report every qualifying accident or injury via
the filing of a Form 7000-1. This language permits no
exceptions; it is unconditional, and Dickenson Coal has failed
to identify anything in the actual text of the regulation that
suggests otherwise. Based on the plain language of the
regulation, therefore, where there are two or more operators who
are subject individually to the reporting requirement set forth
in 30 C.F.R. § 50.20(a), every one of them must report every
qualifying accident or injury.
Because the language of this regulation is not “susceptible
to more than one plausible reading,” we conclude that it is
16
unambiguous and that Auer deference is unwarranted. American
Airlines, Inc. v. United States, 551 F.3d 1294, 1300 (Fed. Cir.
2008) (“When the language of a regulation is ambiguous or
susceptible to more than one plausible reading, we defer to the
agency’s interpretation of its own regulations. . . .”). The
“plain language controls” our reading of the reporting
regulation,
Aracoma, 556 F.3d at 193, and we conclude that the
ALJ’s decision was consistent with this language. Accordingly,
we will not disturb the decision of the ALJ.
C.
Finding nothing in the text of the actual regulation to
support its argument, Dickenson Coal seeks to upend the plain
language of the regulation by suggesting that our interpretation
will lead to absurd results. See Forest Watch v. U.S. Forest
Serv., 410 F.3d 115, 117 (2d Cir. 2005) (“The plain meaning of
language in a regulation governs unless that meaning would lead
to absurd results.” (internal quotation and alteration marks
omitted)). Dickenson Coal takes the position that a literal
reading of the regulation results in unnecessary “double
reporting” as exemplified by this case. Dickenson Coal points
out that Bates supplied all the required information about
Wood’s injury to MSHA when it filed the Form 7000-1, and that
its own subsequent filing of a report with MSHA added nothing
new. In other words, Dickenson Coal argues that a plain
17
language interpretation creates a needlessly duplicative, and
therefore absurd, reporting requirement.
Duplicative and unnecessary is not the same thing as
absurd. Instances in which the court can disregard clear and
unambiguous language because reading the regulation as written
would produce absurd results “are, and should be, exceptionally
rare.” Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th Cir.
2000), aff’d sub nom. Barnhart v. Sigmon Coal Co.,
534 U.S. 993
(2001). Before we would conclude that the unambiguously plain
meaning of a regulation leads to genuinely absurd results, we
would have to be convinced that it was “patently inconceivable
that the agency intended the result.” Pacific Bell Tel. Co. v.
California Pub. Utils. Comm’n,
621 F.3d 836, 848 (9th Cir. 2010)
(internal quotation marks omitted).
There is nothing of the sort here. The Secretary has
suggested plausible reasons for the regulation to require
potentially overlapping or duplicative accident and injury
reports. Requiring every operator to report to MSHA each time
there is an accident reduces 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, the MSHA’s “rates of injury occurrence” statistics
for each operator will be more accurate. 30 C.F.R. § 50.1.
18
(directing the MSHA, using “information received under part 50,”
to “develop rates of injury occurrence”). The MSHA uses this
statistical data to determine whether, for example, closer
oversight is needed at a mine with a poor safety record. See
Big Ridge, 715 F.3d at 636 (“MSHA designates a mine as having a
‘pattern of violations’ (‘POV’) when the mine has established a
history of significant and substantial violations of mandatory
safety or health standards. Once a mine is in POV status, MSHA
has increased authority to institute safety precautions, which
can involve burdensome administrative requirements and
disruption of mine activities.” (internal citations omitted)).
Thus, the regulation’s built-in reporting redundancy is anything
but absurd. It ensures that accidents and injuries do not go
unreported and that the MSHA is able to compile accurate
statistics which promotes increased industry safety.
Moreover, the wide-sweeping “each operator” requirement
precludes operators from shifting via private contract the duty
to report accidents and injuries in their mines to independent
contractors, such as Bates, that had no supervisory authority at
the time of the accident or injury. Such shifting is
undesirable in light of the fact that “[o]wner-operators are
generally in continuous control of mine conditions” and more
aware of the full circumstances surrounding a mining accident
and also “more likely to know the federal safety and health
19
requirements.” Speed Mining, 528 F.3d at 315 (internal
quotation marks omitted) (holding that the Secretary may cite
the owner-operator for violations of the Act committed by an
independent contractor).
Dickenson Coal’s last attempt to circumvent the unambiguous
regulatory language is premised on regulatory history and
general MSHA policy. Neither basis is compelling. Dickenson
Coal’s regulatory history argument focuses on the definition of
“operator” and apparently is offered to convince the court that
independent contractors such as Bates are operators who have a
duty to report. This is of no value to Dickenson Coal, however,
since we have assumed that premise to be true in rejecting the
argument that Bates’s filing of the Form 7000-1 relieved
Dickenson Coal of its reporting obligation under 30 C.F.R. §
50.20(a). And, finally, Dickenson Coal argues the MSHA’s own
Program Policy Manual demonstrates that the regulation was not
intended to elicit duplicate injury reports from multiple
operators. The key portion of the Policy Manual directs
independent contractors to “carefully coordinate their Part 50
reporting responsibilities” with the owner-operator “[i]n order
to assure accurate reporting and recordkeeping and to avoid
duplication.” J.A. 65. This statement is not irreconcilably at
odds with the reporting regulation because, as Dickenson itself
has noted, “[d]epending on the employment circumstances of the
20
injured miner, one operator may have some information regarding
the miner or the incident, while the other may have different
information at its disposal.” Br. of Appellant at 21.
Coordination between operators is therefore necessary if each
operator is to accurately report the injury to MSHA while
minimizing the already slight duplication of effort caused when
multiple operators gather the same information about a
reportable injury before filing separate reports.
IV.
For the foregoing reasons, we conclude that the unambiguous
language of 30 C.F.R. § 50.20(a) imposed an unconditional duty
upon the Dickenson-Russell Coal Company, owner-operator of the
Roaring Fork No. 4 mine, to file within ten days a Form 7000-1
reporting the occupational injury Charlie Wood suffered at that
mine. Dickenson Coal was not relieved of this duty when Wood’s
employer, Bates Contracting, timely filed a Form 7000-1
reporting the same incident. Accordingly, the petition for
review is hereby denied.
PETITION FOR REVIEW DENIED
21
