June 1, 2012

MSHA Has Upper Hand in Jurisdictional Battle With OSHA


By Katie Jeremiah

Summer 2012

Like a Sherman tank, MSHA has succeeded in crushing the jurisdictional fence separating its area of responsibility from OSHA's over the more than 30 years that an agreement between the two agencies has been in effect.

OSHA and MSHA, sister agencies within the Department of Labor, inked a memorandum of understanding (MOU) in 1979 that set limits on their areas of authority. OSHA got concrete batch plants, asphalt plants, and borrow pits. MSHA was given authority over rock crushers, cement plants, and stonecutting operations in mines. The distinctions appeared clear enough, but there were still gray areas, and over time MSHA has not only exploited them, but also has stretched its authority into areas that arguably belonged to OSHA.

The mine agency's opportunism is important to mine operators because of the strict liability nature of the Mine Act. Jurisdiction is one of just a few affirmative defenses that operators can bring to contest an enforcement action. But, if MSHA successfully asserts jurisdiction, operators have little hope of avoiding potential liability. The situation is especially unfortunate when operators comply with OSHA regulations only to find they have run afoul of the Mine Act and thus face stiff penalties and tight abatement deadlines for unknowingly violating mine safety law. What follows are ways in which MSHA has transformed what was thought to have been relatively inelastic borders into rubber bands.

MSHA's authority does not stop at the property line. The Agency has successfully asserted jurisdiction over maintenance facilities and supply warehouses that are miles awayfrom the mine, simply because the equipment was "to be used" in mining.

Timing isn't everything. Even if production has not begun, MSHA may have jurisdiction over a mine because, again, the definition of a mine includes items "to be used" in the work. Thus, if an off-site shop has tools, facilities, or equipment available for use, they may be covered by the Mine Act. Equipment which is unavailable; i.e., tagged out and decommissioned, would be exempt.

Everything enters or affects commerce. There is a common misconception that unless a product is sold across state lines to another party for value, MSHA lacks jurisdiction. Not necessarily. Mines have been deemed to "affect commerce" for outrageous reasons, even when no portion of the operation or sales crosses state lines.

Several examples make the point. Mines have been deemed to "affect commerce" because (1) equipment used in mining was manufactured out of state, (2) although no money was exchanged for the product, it had intrinsic value as a commodity which would have to be purchased elsewhere if not produced by the operator; and (3) the cumulative effect of small in-state operators affects interstate commerce.

Borrow Pits: Scalp It, Don't Screen It! As noted, borrow pits were assigned to OSHA in the MOU. But that has not deterred MSHA from muscling in when the borrow pit material is not placed as bulk fill, but instead is applied to icy roadways for traction control. MSHA has successfully argued that sizing the material for its intrinsic abrasive qualities constitutes milling. This simple twisting of facts propelled borrow pits out from under OSHA's relatively mild enforcement regime and into the harsher territory governed by MSHA.

Not everything has gone the mine safety agency's way, though. Earlier this year, the Federal Mine Safety and Health Review Commission held that MSHA lacked jurisdiction over front-end loaders hauling material from borrow pits along 420 miles of haul road used to maintain the Trans-Alaska pipeline.

The Commission distinguished the case from an earlier one in which MSHA's authority was affirmed by showing that, in this instance, screening operations in the haul road borrow pits were not done to prepare the material to meet market specifications. Instead, the bulk material was used as a matter of convenience to seasonally fill and repair a gravel haul road.

The Road That Never Ends. In fact, haul roads are one of the most hotly contested areas in the OSHA/MSHA turf battle. When MSHA asserts jurisdiction over a haul road, the operator faces extraordinary costs of compliance because MSHA requires berms or guardrails at locations where drop-offs exist. True to form, MSHA does not define the specific height of a drop-off that would require a berm or guardrail. Rather, there is a nebulous standard that has been interpreted to require berms or guardrails for miles of haul roads under MSHA's jurisdiction.

The Commission finally pushed back in 2008. It held that MSHA's authority over haul roads is limited to those that are restricted for use by the mine and dedicated exclusively to the mine's use. Characteristically, MSHA balked at the ruling. In a landmark decision, an appeals court said MSHA's reach extended to an operator who only leased a stretch of semi-private road it shared with others who used it for purposes other than going back and forth to a California cement plant.

What Should Operators Do?

So what are operators to do? They should carefully evaluate their facilities and functions to make sure a clear separation exists between tools, supplies, facilities and equipment used in mining versus non-mine facilities and equipment, especially when any mine equipment is stored or maintained off-site. A case in point is sites that combine concrete batch plants and aggregate production. This separation should be understood by all site personnel, because one wrong statement to an inspector about the overlap of functions can give MSHA the green light to rumble over the jurisdictional fence.

Although Congress has provided MSHA with broad authority, it did not intend the Agency's powers to be unfettered. As Commission Chairman Ford once opined, "At some point, one has to look up from the text of the statute and view the jurisdictional question through the lens of common sense and practicality, mindful that Congress intended to regulate a specific and identifiable sector of commerce by passing the Mine Act."

The mining industry needs to stay vigilant and vigorously resist MSHA's assertion of authority in areas where it simply does not belong.

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