Affinity contends that a coal company, although it may be an operabe an operator, should not be held responsible in a civil penalty proceeding under the Act for the violations of an independent contractor who is also an operator. BCOA argues that an independent contractor should be held solely responsible for its own violations of the Act committed in areas of a coal mine under its control and that there is no basis or legal justification for application of a primary-secondary liability for civil penalties as alluded to by the Chief Judge. 4 Discussion This Board agrees with the result reached by the Chief Judge dismiss Judge found it unnecessary to resolve this issue, the Board is compelled to disagree with this thesis. A doctrine of primary-secondary liability the Board feels is erroneous and unjustified, and the following discussion is directed to that area of disagreement with the Judge's de cision. We cannot accept the Bureau's contention that for each coal mine there can be but one "operator" and that the common law status of "independent contractor" has been abrogated by the Act. The Bureau contends that an independent contractor falls under the definition of "agent" and thus by inference cannot also be an "operator." We cannot agree. The legislative history of the Act describes mine foremen and superintendents as agents of the operator, thus supporting the common law theories of agency adopted in section 3 (e) of the Act. To give true meaning to the expressions of the Congress we consider that the term "operator" must be read together with responsibility for health and safety of employees (miners, workers). Therefore, while more than one person may fall tech ing the proceeding against Affinity, nically within the definition of "op and the decision will be affirmed to that extent. However, in the course of his opinion, the Judge, by way of dicta, suggested that Affinity might have some secondary liability to pay penalties. Although the 3 Section 3(e) "agent" means any person charged with the responsibility for the operation of all or part of a coal mine or the supervision of the miners in a coal mine. See Judge's decision, supra, at 67 and 80 I.D. 234, 235. erator," only the one responsible for the violation and the safety of employees can be the person served with notices and orders and against whom civil penalties may be assessed. 5 Committee on Education and Labor, House of Representatives, 91st Cong., 2d Sess., Legislative History Federal Coal Mine Health and Safety Act (March 1970) at 44. March 19, 1973 We cannot agree that there can be a more or less offending party. Inherent in the Act and its definitions is the concept of liability of an operator for violations of safety standards. While we concede that in this case both Affinity and Cowin technically fall within the definition of "operator," the proper party to be held liable for penalties is that operator responsible for the violations and liable for the health and safety of its employees. Under the facts of this proceeding, Cowin as an "independent contractor" was responsible for the operation and was responsible for the safety of its workers. We do not intend by this decision to imply that an operator such as Affinity would be immune from liability for assessment of penalty where it materially abetted violations of its independent contractor (Cowin), or actually committed view. The choice of a proper party is an inherent responsibility of enforcement which cannot be renounced by administrative fiat. ORDER WHEREFORE, pursuant to the authority delegated to the Board of Mine Operations Appeals by the Secretary of the Interior (43 CFR 4.1(4)), IT IS HEREBY ORDERED that the Chief Judge's decision of October 4, 1972, granting the Motion to Dismiss the proceeding IS AFFIRMED. such violations through a princi- 2IBMA 63 In light of the foregoing holding, we must also reject the Bureau's alternative argument that it has unlimited discretion to choose between operators in penalty assessment proceedings. Certainly the Bureau has the initial discretion in serving orders and notices. However, since the question of the responsible operator is a factual determination, this discretion is not unlimited and must be subject to and withstand the scrutiny of administrative re C. E. ROGERS, JR., Chairman. DAVID DOANE, Member. JAMES M. DAY, October 4, 1972 DECISION Statement of Case. On February 4, 1972, the Bureau of Mines filed a petition for the assessment of civil penalties against respondent, Affinity Mining Company, for alleged violations of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970). The petition was filed pursuant to section 109 of the Act, 30 U.S.C. § 819 (1970), which provides in part as follows: Sec. 109. (a) (1) The operator of a coal mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of this Act* ** shall be assessed a civil penalty by the Secretary [of the Interior] * ** which penalty shall not be more than $10,000 for each such violation. *** In determining the amount of the penalty, the Secretary shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator w was negli gent, the effect or the operator's ability to continue in business, the gravity of the violation, and the demonstrated good| faith of the operator charged in attempting to achieve rapid compliance after notification of a violation. The petition alleged violations of 30 CFR 75.200 and 75.1400 as set forth in order of withdrawal No. 1, issued on December 21, 1970. The order named "Affinity Coal Company" as the operator of the mine.1 Respondent filed an answer asserting, inter alia, that the order concerned practices of the Cowin Construction Company at the time and that respondent had no employees of its own at the mine. In its prehearing statement respondent elaborated its position, asserting that Cowin was an independent contractor performing work for respondent and that it was not an agent of respondent; therefore respondent was not liable for the violations charged. A hearing was held at Charleston, West Virginia, on May 9, 1972, at which the Bureau and respondent were represented by counsel. The Bureau called as a witness Federal coal mine inspector Thomas Allamon, who issued the withdrawal order. Respondent called as its sole witness John W. Cook, mine accountant for respondent. At the conclusion of the Bureau's case, respondent moved that the petition be dismissed on the ground that Cowin was not an agent of respondent or subject to its direction, supervision and control and that the petition should have been directed to Cowin. The motion was taken under advisement. (Tr. 54-55.) Issue. The basic issue presented here is whether respondent should be subject to the assessment of civil penalties for the violations charged here, assuming that the violations occurred. Factual Circumstances. ༔་། Before considering the legal ques tions involved, it is necessary to consider the factual circumstances present. The pertinent facts are not disputed and I find them to be as follows: i trosong Jon The Keystone No. 5 mine is located on land leased by Affinity from Pocahontas Land Corporation. The mine was originally opened by the Lillybrook Coal Company. It was shut down in 1958 and sealed in 1970. At that time a 1200-foot slope had been driven from the surface to the No. 4 seam. and that seam had been mined. In 1970, Affinity obtained State.. permits to reopen the mine for the purpose of developing a new coal seam, the No. 3, lying under the 1 March 19, 1973 No. 4 seam. Affinity contracted with Cowin & Company, Inc., on October 13, 1970, to extend the slope from the No. 4 seam into the No. 3 seam. On December 21, 1970, when the withdrawal order was issued, the slope had been driven a distance of 35-40 feet. The ultimate length of the slope was to be 600 feet. Eighteen men were employed to drive the slope, six men working on each of three shifts per day. All 18 men were employed by Cowin. Their work was directed by Edward Stamper, superintendent for Cowin. Affinity had no employees working underground at the time or on the slope project. Affinity did employ William Mabe as overseer engineer for the entire project of reactivating the mine. His duties were to oversee the planning of the mine, the construction of the cleaning plant and outside facilities, and the installation of adequate ventilation facilities for the slope project. The No. 4 seam was utilized for ventilation. Specifically, with respect to the slope project Mr. Mabe's function was to approve necessary design changes and the completed project. He had no direction of the work force employed by Cowin. Such direction and supervision were exercised solely by Mr. Stamper. The two men did have side-by-side trailer offices at the site. In December 1970, the slope to the No. 3 seam was being driven at an 18 degree pitch. Air hammers were being used to drill holes in the solid rock. An open type steel mine car with a hoisting rope was used to transport the rock removed to the surface. The car was also used to transport the men. On December 21, 1970, when Inspector Allamon visited the mine, he found loose brows, or areas of loose materials, in the roof of the slope. The roof was being bolted only in accordance with directions from the foreman to the men; there was no approved roof control plan. The hoist had no overwind control, the hoisting equipment was not examined daily, and the mine car had no safety catches or runaway protective devices. For these and other reasons Inspector Allamon issued an order of withdrawal pursuant to section 104 (a) of the Act, 30 U.S.C. § 814(a) (1970). All the conditions described in the order pertained to the new slope being driven to the No. 3 seam. The withdrawal order did not concern the old slope from the surface to the No. 4 seam. Consequently, any subsequent reference in this decision to the "slope" means the new slope. As stated earlier, the order named Affinity as the operator but the order was served on Mr. Stamper. The order was modified on December 24, 1970, and later dates and was finally terminated on February 25, 1971. Applicable Law. Section 109 (a) (1) of the Act provides that the "operator" of the mine in which a violation occurs shall be assessed a civil penalty. "Operator" is defined in section 3 of the Act, 30 U.S.C. § 802 (1970), that work was completed according as follows: to plan. This is arguably supervision in a broad but not unreasonable (d) "operator" means any owner, lessee, or other person who operates, controls, or supervises a coal mine; Section 2 defines "coal mine" as follows: (h) "coal mine" means an area of land and all structures, * ** shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used in, or resulting from, the work of extracting in such area bituminous coal * The definition of "operator" is essentially the same as the definition of that term in the legislation as it was introduced in the Senate and passed by that body.2 Commenting on that definition the Senate Committee said: The definition of an "operator" is designed to be as broad as possible to include any individual, organization, or agency, whether owner, lessee or otherwise, that operates, controls, or supervises a coal mine, either directly or indirectly. S. Rep. No. 91-411, 91st Cong., 1st sess. 45 (1969). Viewing the general language of the definition in this broad sense, it could be argued literally that Affinity supervised the Keystone No. 5 mine, which would include the new slope being driven in it, and therefore that it was an operator of the mine. While Affinity did not direct or control the day by day work of the men driving the slope, it approved design changes and saw to it 2 The only difference is that the Act uses the phrase "who controls" whereas the bill before the Senate said "who has control of." sense. As to whether an operator, in this liberal sense, is subject to civil penalties for violations committed by those not under its direct control, it is to be noted that section 109 (a) (1) does not limit the imposition of civil penalties to an operator whose agents or employees commit the violations. Section 109 (a) (1) states that liability is fastened on "[t]he operator of a coal mine in which a violation occurs." No causal connection is specified as a requirement for imposing a penalty. In fact, the legislative history of section 109 suggests a Congressional intent to impose absolute liability. The conference report on section 109 stated: 2. The Senate bill provided that, in determining the amount of the civil penalty only, the Secretary should consider, among other things, whether the operator was at fault. The House amendment did not contain this provision. Since the conference agreement provides liability for violation of the standards against the operator without regard to fault, the conference substitute also provides that the Secretary shall apply the more appropriate negligence test, in determining the amount of the penalty, recognizing that the operator has a high degree of care to insure the health and safety of persons in the mine. H. Rep. No. 91-761, 91st Cong., 1st sess. 71 (1969); (Italics added). This broad extension of liability suggests that the traditional relationships of principal-agent, employer-employee, and contractorindependent contractor are not to determine who is to be liable or not |