Berwind Decision: Where Are We Now With Liability For Contract Miners

Just prior to the close of the century, the Mine Safety and Health Review Commission issued its long-awaited decision in Berwind Natural Resources et al. vs. Secretary of Labor[1] to usher in the new millennium. The case arose as a result of a mine explosion in Eastern Kentucky resulting in the US Mine Safety and Health Administration's (MSHA) issuance of 225 citations, not only to the contractor but to four affiliated entities of Berwind Corp. While an Administrative Law Judge dismissed citations to three of the four Berwind entities, MSHA and the remaining Berwind entity appealed the case to the commission. Although the commission effectively left intact the administrative law judge's decision, it announced a new theory of liability that would apparently be applied in the future, namely the unitary operator theory.