Administrative Law Judge Jacqueline Bulluck

CERTIFICATION

I hereby certify that on the 22" day of January, 2019, the within document was mailed to the
following:

Judge Jacqueline Bulluck

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, DC 20004-1710

Robert J. Lesnick

Chief Administrative Law Judge

Office of Administrative Law Judges

1331 Pennsylvania Ave., NW, Suite 520N
Washington, DC 20004-1710

With a copy to:

Kate O’Scannlain, Solicitor of Labor

Christine T, Eskilson, Acting Regional Solicitor
James L. Polianites, Jr., Esq.

U.S. Department of Labor

Office of the Regional Solicitor

JFK Federal Building-Rm. #E-375

Government Center

Boston, MA 02203



Administrative Law Judge Jacqueline Bulluck

with a reasonable potential to cause death,” the meaning of injury
might be ambiguous.”

“The plain text of regulation does not contemplate this result.
Conspicuously absent from the definition of “accident,” is any
reference to illness or disease. Nor does Section 50.20 make any
distinction between accidents that do and do not involve
occupational illnesses, as it does with occupational injuries.”
Page 11.

“This complete lack of mention leads to the conclusion that the
meaning of injury does not, by virtue of intent of the drafters or
reasonable interpretation, include mere illness or disease, and
hence, does not include heart attacks.”

The court vacated the citation stating, “The employee’s heart attack did not constitute an
immediately reportable accident because it was not an injury under 30 CFR 50.10(b).” Further
stating on page 8, “Thus, if a heart attack is a disease process and the regulations meaning of
injury does not implicitly contemplate disease, then a heart attack is not subject to immediate
notification requirements.”

Respondent submits that the Administrative Law Judge Bullock issued an erroneous
decision in the matter of Secretary of Labor v. Nyrstar, Docket No. SE 2015-136-M AC No. 40-
02213-370090, in ruling that a natural death is in fact an accident.

WHEREFORE, Respondent prays that the Decision of the Honorable Jacqueline R.
Bullock be reversed.

Respectfully submitted,

aucun SAND & STONE, LLC

Shechtman Halperin Savage, LLP
1080 M
Pawtucket, RI 02860

(401) 272-1400 (Tel.)
(401) 272-1403 (Fax)

gvisconti@shslawfirm.com (E-mail)


Administrative Law Judge Jacqueline Bulluck

I
|
|
|

mR

[nnn EOE, L MINE SAFETY AND HEALTH REVIEW COMMISSION

oy BOR CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. YORK 2018-0031-M
Petitioner A.C. No. 37-00156-453924

v.
RICHMOND SAND & STONE, LLC,
Respondent

PETITION FOR DISCRETIONARY REVIEW PURSUANT TO
SECTION 2700.70 OF THE FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION PROCEDURAL RULES

I. Now comes the Respondent in the above matter and hereby petitions for discretionary
review as follows:

Under Section 2700.70, “Petition for Discretionary Review,” subsection (c), “Grounds,”
Respondent hereby states that:

The Decision issued by Administrative Law Judge Bulluck in her “Summary Decision”
dated January 17, 2019, is erroneous in that:

1. The legal conclusion is erroneous.
2. The Decision is contrary to law and the applicable citations.
3. A substantial question of law is involved.

Il. Respondent supports its Petition as follows:

1. That the Decision misconstrues the meaning and intent of 30 CFR Section 50.2, in
that the term “accident” does in fact mean “a death of an individual at a mine.” (The
Respondent argues that the death of an individual must be pursuant to an “accident”
and not a natural death). Section 50.2(h) clearly presupposes that an accident has
occurred, i.e. subsection (h) “accident means: 1) a death of an individual at a mine.”

Since there was no accident in this matter but a natural death, there is no reporting
requirement within the fifteen minute section as noted above. Respondent further
states that there is no definition of “accident” in the regulation and therefore, the word
“accident” should be construed in its ordinary and clear meaning. “Accident” does
not mean a natural death. In the above section (50.2(h)) an accident includes
accidental death of an individual in the true meaning of the word “accident” in
Dictionary.com defines an “accident” as “an undesirable or unfortunate happening
that occurs unintentionally and usually results in harm, injury, damage, loss, etc.” and

1


Administrative Law Judge Jacqueline Bulluck

further defines accident as “an unplanned event that results in personal injury or
property damage.”

Therefore, a natural death is not an accident, since no accident occurred at the mine as
stipulated by the Parties.

2. By construing accident to include a natural death, the court is attempting to
“legislate” the word “accident” in meaning that a natural death is in fact an accident.

3. The Decision is contrary to other decisions rendered by the same court. See,
Secretary of Labor vs. Hanson Aggregates Midwest, Decided on August 5, 2013,
Docket No. Kent 2012 1285 MAC No. 1512905-292011-01, whereby the court
granted the Respondent’s motion for summary judgment whereby a heart attack was
not reported to MSHA within the allowed fifteen minutes,

Il. CITATIONS

Mine Safety and Health Subpart (B), “Notification,” investigation, etc., Section 50.10
states:
“The operator shall immediately contact MSHA at once without
delay and within fifteen minutes . . . once the operator knows or
should know that an accident has occurred involving a death of an
individual, an injury or an entrapment.” (Emphasis applied.)

Subpart (C), Section 50.20 states:

“The operator shall mail completed forms to MSHA within ten
(10) working days after an accident or occupational injury occurs .
. . when an accident specified in 50.10 occurs, which does not
involve an occupational injury . . . Form 7000 — which should be
completed .. .” (Emphasis applied.)

Citation in dispute is Citation No. 9367109, with a date of October 11, 2017.

In the matter of Secretary of Labor y. Hanson Aggregates Midwest , decided on August 5,
2013, Docket No. KENT 2012-1283, M.A.C. No. 1512905-292011-01, the court granted the
respondent’s motion for summary judgment whereby a heart attack was not reported to MSHA
within the allotted fifteen minutes.

The court in its discussion stated:

“The words of the cited standard are clear and exclude the non-
work related event which occurred at the respondent’s mine.
Supporting the text of the standard, the Federal Registers preamble

2


Administrative Law Judge Jacqueline Bulluck

to the cited standard is clearly consistent with those words; it does
not list a heart attack as an “injury.” The whole of Part 50’s
obligations arise in the context of a mine accident’s occurrence.”
Page 3 of 4.

“Here, as noted, the Secretary has relied upon the definition of an
“accident” particularly pointing to subsection (H)(2), which
defines the category of “accident” as an injury to an individual at a
mine which has a reasonable potential to cause death. Therefore,
an injury must first have occurred for an accident to be reportable.”
Page 4 of 4.

“Based on the foregoing, the court finds that this was not a reportable event and
accordingly it grants the Respondent’s motion and denies the Secretary’s motion.”

In addition, in the matter of Secretary of Labor vy. Vulcan Construction Materials LP,
decided August 30, 2016, the issue is whether the respondent violated the accident notification
requirement of 30 CFR Section 50.10(b), when it failed to report the employee’s heart attack.

The court further held that:

“The regulations never explicitly mentioned a heart attack; it has
no special regulatory meaning that would preclude consideration of
the ordinary meaning of the term.”

(Decision, page 7).

Further quoting:

“The explicit language of Section 50.10 requires immediate
notification only when there has been an accident involving a
death, an injury which has a reasonable potential to cause death, an
entrapment which has a reasonable potential to cause death, or
another accident. It says nothing about disease. But the explicit
text of Section 50.10(b) doesn’t exclude disease either. Section
50.10(b) requires an operator to contact MSHA within fifteen
minutes once it knows or should have known that an accident has
occurred involving an injury at a mine which has a reasonable
potential to cause death. Thus, if a heart attack is a disease process
and the regulations meaning of injury does not implicitly
contemplate disease, then a heart attack is not subject to the
immediate notification requirement. If, however, the regulation
could implicitly include “disease” within the meaning of “injury

3