By Ellen Smith
The unambiguous language of accident reporting requirements of §50.20(a) impose an unconditional duty of operators to submit accident reports to MSHA when contractor employees are injured at the operator’s mine when those employees are under the control of the operator, according to a ruling of the 4th U.S. Circuit Court of Appeals.
The 4th Circuit ruling upholds the Jan. 16, 2013, decision of ALJ Jerold Feldman that Alpha Natural Resources’ Dickenson-Russell Coal Co. should have reported a contract miner’s injury (35 FMSHRC 123). Feldman ruled that an operator is not relieved of the duty to file a Form 7000-1, even if the contractor files a form 7000-1 reporting the same incident.
The miner worked for Bates Contracting and Construction – a temporary employment agency that supplied miners to work at the Roaring Fork No. 4 mine. An employee of Bates was operating a roof bolter and installing cable bolts at the Roaring Fork No. 4 mine on May 9, 2009, when a portion of the roof dislodged and struck him on his left elbow.
Bates did not have a supervisor or any other person at the Roaring Fork No. 4 mine who could have directed or controlled the work performed by the miner, and in this situation, Judge Feldman said that the coal company should have filed a 7000-1 accident report.
While both parties are considered “operators” under §3(d) of the Mine Act, Feldman ruled the party responsible for maintaining a safe working environment in the mine is the party who is to be responsible for notifying MSHA of any accidents.
The 4th Circuit’s opinion, however, expanded the reporting requirements, by stating that both Bates and Dickenson-Russell were responsible for filing an accident report.
“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.”
The court added that the “plain language of this regulation is not susceptible to more than one plausible reading.”
While there might be duplicative or overlapping reporting, this will reduce the likelihood that accidents or injuries go unreported, the court said. The court’s opinion fits with a recent IG audit that found under-reporting of accidents is a problem that MSHA needs to handle better.
The court also stressed that this 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 owner-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 requirements.”
DICKENSON-RUSSELL COAL CO., LLC, 3/27/2014, CA 4 No. 13-1374; 21 MSHN D-1010
30 CFR § 50.20
Preparation and Submission of MSHA Report Form 7000-1–Mine Accident, Injury, and Illness Report
(a) Each operator shall maintain at the mine office a supply of MSHA Mine Accident, Injury, and Illness Report Form 7000-1. These may be obtained from the MSHA District Office. 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, or an occupational illness may have originated, shall complete or review the form in accordance with the instructions and criteria in §§50.20-1 through 50.20-7. If an occupational illness is diagnosed as being one of those listed in §50.20-6(b)(7), the operator must report it under this part. The operator shall mail completed forms to MSHA within 10 working days after an accident or occupational injury occurs or an occupational illness is diagnosed. When an accident specified in §50.10 occurs, which does not involve an occupational injury, sections A, B, and items 5 through 12 of section C of Form 7000-1 shall be completed and mailed to MSHA in accordance with the instructions in §50.20-1 and criteria contained in §§50.20-4 through 50.20-6.