What is Your Company’s Jurisdictional Boundary Between MSHA and OSHA?
By Brad Hiles and Ben McMillen
MSHA and OSHA are members of the same governmental group, the U.S. Department of Labor. In general, OSHA governs and regulates the American workforce, unless preempted by another federal statute, including the Federal Mine Safety and Health Act (the Mine Act).
MSHA governs operations in mines, as well as “milling” activity, and the work of “preparing coal and other minerals.” OSHA and MSHA have an inter-agency agreement delineating their respective areas of authority. Created in 1979, the agreement provides several instances of a bright jurisdictional line. In other instances, the line is blurry.
Companies with integrated mining and road-building/paving operations, for example, know that their aggregate-storage facilities or batch plants should be under OSHA’s jurisdiction even though their quarries and portable mining operations fall within MSHA’s jurisdiction.
Similarly, cement manufacturers know that their quarries, crushers, kilns and other milling processes fall under MSHA’s jurisdiction, but their distribution terminals are governed by OSHA’s standards (when those terminals are not located on mine property). The inter-agency agreement draws bright lines such as these in some instances. Much of the time, however, the lines are not clear.
In those instances where litigation has been necessary to determine which agency has jurisdiction – the blurred line instances – decisions from courts and commissions have been mixed. Some tribunals have found in favor of MSHA jurisdiction, while others have not.
Mostly, this can be explained by the fact-intensive approach tribunals must take when deciding if the Mine Act controls the case. Here are some examples of decisions that have been rendered both ways; that is, some decisions find that OSHA has jurisdiction and others impose jurisdiction under MSHA:
- Machine shops located on property separate from a mine but involved in the repair of machinery utilized in the mine.
- Heavy mobile-equipment repair facilities located on property separate from the mine.
- Facilities utilized for loading and/or transporting coal or other minerals.
- Facilities used exclusively for milling where the product was mined at another location by another entity.
- Power plants which engage in the breaking, crushing, sizing and storage of coal preliminary to the generation process.
Courts and commissions examine the “blurred line” cases based upon the facts and circumstances peculiar to each case. Similarly, when OSHA and MSHA attempt to resolve jurisdictional disputes, those agencies examine the facts and circumstances on a case-by-case basis under the Interagency Agreement. Here are the factors typically examined by courts and commissions:
1. The nature of the activities, particularly in relation to activities normally associated with mining.
2. The relationship in time and the geographic proximity of the activities in question to active mining operations.
3. The nature of the land at the time of the activities.
4. The operational relationship of the activities to active mining operations, including the control and direction of the workforce and the degree to which equipment or facilities are shared with active mining operations.
Factors under the inter-agency agreement:
1. The processes conducted at the facility.
2. The relation of all processes at the facility to each other.
3. The number of individuals employed in each process.
4. The expertise and enforcement capability of each agency with respect to the safety and health hazards associated with all the processes conducted at the facility.
Aggregate and road-building operations can present challenging jurisdictional decisions. Here are some practical considerations for employers who face such a dilemma:
Physically separate the mining facilities from the other facilities. Greater separation will favor a finding of OSHA jurisdiction for the facilities not intended for mining or crushing. Still, contiguous property – particularly when separated by a fence line – will also militate against MSHA jurisdiction.
Establish separate ownership and management of the facilities. Where secondary operations are located on separate property owned by another entity, jurisdiction under the Mine Act is less likely. Having separate management at the secondary facility will also favor OSHA jurisdiction there.
Separate transportation of minerals from one facility to the other. Do not transport mined or milled minerals from the mine to the secondary facility via a conveyor system. Relevant case law has found that the use of conveyers subjected the secondary facility to MSHA’s jurisdiction. Similarly, using mine hauling vehicles from a facility owned by the mine to transport aggregate to a secondary facility will be a factor in favor of establishing MSHA jurisdiction at that secondary facility.
Separate machines and equipment. Where some of the machines, vehicles and equipment used in the mine or milling area are also used in the secondary facility, even temporarily, the operations will appear integrated or interrelated. This may tend to support jurisdiction under the Mine Act.
Do not conduct maintenance on machines and equipment. At the secondary facility, do not perform maintenance on any machines or equipment that are used at the mine or milling facility.
Establish separate work crews at each facility. Federal appellate courts have held that employees working in facilities technically adjacent to the actual extraction site could be considered miners working “around” a mine only “if their normal duties brought them into frequent contact with the extraction site and the accompanying dust exposure.”
Safety and health posters. Posting appropriate OSHA workplace posters, and not MSHA posters, at the secondary facility may militate against jurisdiction under the MSHA Act.
Employee training. Implementing OSHA training programs for employees at the secondary facility may help establish OSHA jurisdiction, whereas programs related to mine safety will create the appearance that the employer envisions MSHA jurisdiction. (But remember that MSHA training will be required for any OSHA-side employees who need to work on the mining side more than sporadically, like mechanics.)
Brad Hiles (left) is a partner at Husch Blackwell LLP, and Ben McMillen is an associate at the firm. They represent mine owners and operators in the defense of citations and penalty actions under the Federal Mine Safety and Health Act and employer’s governed by the Occupational Safety and Health Act.
Interagency Agreement: MSHA and OSHA
The Mine Safety and Health Administration (MSHA), U.S. Department of Labor, and the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, have entered into this agreement to delineate certain areas of authority, set forth factors regarding determinations relating to convenience of administration, provide a procedure for determining general jurisdictional questions, and provide for coordination between MSHA and OSHA in all areas of mutual interest.
A. Authority And Principle
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 91-173 as amended by Pub. L. 95-164 (Mine Act), authorizes the Secretary of Labor to promulgate and enforce safety and health standards regarding working conditions of employees engaged in underground and surface mineral extraction (mining), related operations, and preparation and milling of the minerals extracted.
2. The Occupational Safety and Health Act of 1970 (OSHAct) gives the Secretary of Labor authority over all working conditions of employees engaged in business affecting commerce except those conditions with respect to which other Federal agencies exercise statutory authority to prescribe or enforce regulations affecting occupational safety or health. The OSHAct also provides that States may operate their own occupational safety and health programs under a plan approved by the Secretary.
3. This agreement is entered into to set forth the general principle and specific procedures which will guide MSHA and OSHA. The agreement will also serve as guidance to employers and employees in the affected industries in determining the jurisdiction of the two statutes involved. The general principle is that as to unsafe and unhealthful working conditions on mine sites and in milling operations, the Secretary will apply the provision of the Mine Act and standards promulgated thereunder to eliminate those conditions.
However, where the provisions of the Mine Act either do not cover or do not otherwise apply to occupational safety and health hazards on mine or mill sites (e.g., hospitals on mine sites) or where there is statutory coverage under the Mine Act but there exist no MSHA standards applicable to particular working conditions on such sites, then the OSHAct will be applied to those working conditions. Also, if an employer has control of the working conditions on the mine site or milling operation and such employer is neither a mine operator nor an independent contractor subject to the Mine Act, the OSHAct may be applied to such an employer where the application of the OSHAct would, in such a case, provide a more effective remedy than citing a mine operator or an independent contractor subject to the Mine Act who does not, in such circumstances, have direct control over the working conditions.
To read the full agreement, go to: http://arlweb.msha.gov/MOU/1979mshaoshammu.htm