By Jordan Crews
Yesterday, in Dickenson-Russell Coal Company v. Secretary of Labor, the Fourth Circuit denied the plaintiff’s petition for review, holding that the plaintiff violated the Federal Mine Safety and Health Act of 1977 by failing to report a worker’s occupational injury to the Mine Safety and Health Administration (“MSHA”) within ten days after the incident occurred.
Dickenson Coal owns and operates an underground coal mine in southwest Virginia. Bates Contracting is a temporary labor agency that supplies miners to work at this mine. In 2009, Charlie Wood, an employee of Bates, was injured while he was working in the mine. Although Wood was an employee of Bates, he was under the control and supervision of personnel from Dickenson on the day of his injury. There were no Bates employees at the mine who were supervising or could have supervised Wood’s work. Bates, rather than Dickenson, reported the injury to the MSHA. Because Dickenson did not file a report, the MSHA issued it a citation for failure to timely report an occupational injury as required by the regulations.
Dickenson contested the citation before the Federal Mine Safety and Health Review Commission (the “Commission”). Dickenson, while acknowledging that it was an “operator” within the meaning of the regulations, argued that Bates was also an “operator.” Therefore, Dickenson argued that either it or Bates could have satisfied the obligation to report the injury; as such, only one of the operators, but not both, was required to report the injury. The ALJ granted “summary decision” to the Secretary, rejecting Dickenson’s argument that Bates qualified as an “operator” within the meaning of the regulations. The ALJ observed that although Bates might qualify as an “operator” under the statutory definition, the regulatory definition controlled the meaning of the term “operator.” Thus, because Bates was not “operating, controlling or supervising” mining activities at the mine when Wood was injured, Bates did not meet the regulatory definition, and was therefore not obligated as an operator to “report each incident or occupational injury” within ten days. Accordingly, the ALJ concluded that Bates’ report of the injury did not relieve Dickenson of its reporting obligations under the regulations. Dickenson filed a petition for review.
Because the issue presented to the Fourth Circuit required review of the agency’s interpretation of its own regulation, the Court’s analysis proceeded under Auer v. Robbins, instead of Chevron. Auer deference, like Chevron, is warranted only when the language of the regulation is ambiguous. When the regulation in question is unambiguous, its plain meaning controls. If, however, the regulation is ambiguous, the agency’s interpretation controls unless that interpretation is “plainly erroneous or inconsistent with the regulation.”
Dickenson contended that the ALJ incorrectly concluded that the meaning of “operator” within the regulations is controlled by the regulatory definition of “operator” rather than the statutory definition. Building on this argument, Dickenson contended that when there is more than one “operator” who would be required under the regulations to report the same injury (as there would be if the statutory definition controlled), the regulation requires only one of the operators, not both, to report the injury. As such, Dickenson contended that because Bates reported Wood’s injury in a timely fashion, there was no violation.
The Fourth Circuit, however, stated that Dickenson’s obligation to report the incident did not depend on whether Bates was considered an “operator.” Even assuming Bates was an “operator,” “its filing of the . . . report did not relieve Dickenson Coal of the obligation to file its own report.” The regulation states, in relevant part:
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 occupational injury occurs or an occupational illness is diagnosed.
The key phrases here are “each operator” and “each accident.” The ordinary meaning of “each” is “every one of two or more people or things considered separately.” Thus, according to the regulation’s regular and ordinary meaning, the regulation means that anyone who qualifies as an “operator” under the regulations must report every qualifying accident or injury. According to the Court, “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.” Thus, where there are two or more operators who are subject individually to the reporting requirement . . . , every one of them must report every qualifying accident or injury.” The Court concluded that the regulation “is unambiguous and that Auer deference is unwarranted.”
The Fourth Circuit held that the ALJ’s decision was consistent with the language in the regulations, and therefore denied Dickenson’s petition for review.
