By Donna Vetrano Pryor
Have you noticed a recent trend of MSHA inspectors issuing citations to delivery truck drivers at the mine office or the shop? These citations range from alleged training violations (for the drivers) to allegations of failure to chock tires while in the mine’s parking lot. This begs the question, who and what is covered under the Mine Act? Where does MSHA’s jurisdiction begin and end? Of course, there are no bright lines to these questions, but the Mine Act and case law do shed light on them.
Section 3(h)(1) of the Mine Act gives MSHA jurisdiction over lands, structures, facilities, equipment, and other property used in, to be used in, or resulting from mineral extraction, or used in or to be used in mineral milling. 30 U.S.C. § 802(h)(1) defines “coal or other mine” as “(A) an area of land from which minerals are extracted in nonliquid form or, if in liquid form, are extracted with workers underground, (B) private ways and roads appurtenant to such area, and (C) lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such minerals.” In short, generally MSHA has jurisdiction over virtually any facility that performs mineral extraction (mining) or milling, while OSHA has jurisdiction over everything after mining and milling are completed.
In 1979, shortly after the Mine Act became law, DOL, MSHA and OSHA published an Interagency Agreement to clarify which agency had jurisdiction over particular facilities, industries, or processes. The Interagency Agreement delineated some of the boundaries of the respective agencies’ jurisdiction. Under the Interagency Agreement, MSHA has jurisdiction over dredging operations “[w]hen the primary purpose of the dredging operation is to recover metal or nonmetallic minerals for milling and/or sale or use.” MSHA “has authority over the loading/unloading of coal or other minerals into/out-of barges or vessels, including associated pier or dock facilities, when such transfer is integral to the extraction, preparation or milling process. … Likewise, MSHA authority extends to barges and vessels used in mineral dredging operations, such as mining sand and gravel from underwater deposits, and includes the loading/unloading of such barges/vessels.” While this agreement is helpful in determining the agency jurisdiction of different processing phases, there are more gray areas of jurisdiction that should be clarified.
Recently in Clarkson Construction Company, Inc. v. Secretary of Labor (MSHA), an MSHA inspector issued one citation and two orders to Clarkson alleging failure to wear fall protection and failure to chock tires. (Docket CENT 2014-588-RM, ALJ Manning, February 17, 2015). The court vacated the citations, finding MSHA lacked jurisdiction over Clarkson. The court found that under the Mine Act the term “operator” is defined as “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine. 30 U.S.C. § 802(d). The court noted that the Commission has held that any independent contractor that performs “more than de minimus services at a mine” is an operator under § 802(d). The court clarified that although jurisdiction is a legal question, it is highly influenced by factual considerations.
Clarkson had not performed any services or construction at the mine site for 5 years. On the date in question, two Clarkson employees had driven 200 yards onto mine property to tarp truck beds. MSHA argued that the Clarkson employees cited in the citations entered mine property and therefore fell under the jurisdiction of the Mine Act. However, the court found that Clarkson’s use of mine roads alone does not confer MSHA jurisdiction over the company. The court found that Clarkson was neither an operator nor an independent contractor under the Mine Act and vacated the citation and orders.
What about offices? Does MSHA or OSHA have jurisdiction over them? MSHA inspectors recently showed up at an operator’s small offices about one mile away from the mine site to do an inspection. How could an inspection of mine offices keep miners safe? In W.J. Bokus Industries, Inc., an MSHA inspector issued a citation because there was a hole measuring 2- x 3 ft. in front of the scale house office. (Dockets YORK 92-106 and 107, July 8, 1993). The citation was upheld in that case because the walkway was regularly traversed by truckers when walking between the scale where trucks are weighed and the office. However, in Paul, Dilip v. P.B.-K.B.B., Inc., the court found that the office of engineering firms which prepared designs for construction of shaft and tunnels for long-term storage of nuclear waste is not a mine under the Mine Act, as the design work was too far removed from what reasonably can qualify as mining activity. (3 MSHC 2006). Again, like the analysis in the Clarkson case, the analysis in these cases is largely based on factual considerations.
Of course, jurisdiction issues aside, even if you have an accountant driving on mine property solely to go to the office, site-specific hazard training should be completed. As stated in the regulation, you must provide site-specific hazard training, as appropriate, to any person who is not a miner but is present at the mine site, including: (1) office or staff personnel; (2) scientific workers; (3) delivery workers; (4) customers, including commercial over-the-road truck drivers; (5) construction workers or employees of independent contractors who are not miners; (6) maintenance or service workers who do not work at the mine site for frequent or extended periods of time; and (7) vendors or visitors. See 30 C.F.R. § 46.11(b). In Hansen Truck Stop, Inc., the court upheld a violation of § 46.11(b) where a sand and gravel operator failed to provide training to customer truck drivers who entered the site and self-loaded their trucks from the stockpile. However, the court rejected MSHA’s S&S designation as the drivers testified they were very familiar with the stockpile area and the road that led to the site and they never entered other areas of the plant. (26 FMSHRC 293 (ALJ Zielinksi, March 9, 2004)).
When considering whether a particular building, facility, property or party is covered by MSHA or OSHA consider: (1) the language of the Mine Act and the OSH Act; (2) the MSHA/OSHA Interagency agreement; and (3) the specific facts – who is getting the citation, why were they there, where is the property, what takes place on the property, what is the history of OSHA or MSHA inspections? If a party is issued a citation where MSHA’s jurisdiction is questionable, operators should consider challenging MSHA’s authority and think twice before paying the penalty, even if it is a low dollar amount. If the facility has not yet been constructed or inspected, companies should consider seeking to establish MSHA or OSHA jurisdiction by planning to comply with one agency or another and adopting regulatory mandates of the preferred agency.